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Citation
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Judgment date
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| July 2022 |
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Temporary injunction was incompetent after decree execution; preliminary objection rightly sustained and appeal dismissed with costs.
Land law – Temporary injunctions – competency of injunction application after decree execution; Civil procedure – preliminary objection – competence and timing; Audi alteram partem – allegation of denial of hearing where appellant was party to prior proceedings; Remedies – appropriate remedy to challenge execution.
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29 July 2022 |
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Leave to appeal struck out as time-barred for being filed beyond the 30-day limit under Rule 45(a).
Civil procedure – Leave to appeal – Time limit for leave applications – Rule 45(a) Court of Appeal Rules 2019 (30-day limit). Limitation – Computation of time – Whether time for filing starts from delivery of decision or receipt of certified copies (s.19(2) Law of Limitations Act). Preliminary objection – Time-bar as a point of law disposing of application.
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29 July 2022 |
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Court adopts parties' deed of settlement under s95 and Order XXIII r3 as a binding, enforceable consent judgment.
Civil Procedure – Consent judgment – Adoption of parties’ Deed of Settlement under section 95 and Order XXIII Rule 3 – binding and enforceable as a decree. Land law – dispute over ownership – withdrawal with undertaking not to refile – estoppel and bar to subsequent suits from same cause of action. Remedies – enforceability of consent terms and consequences of breach.
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29 July 2022 |
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Time to appeal runs from receipt of certified judgment copies; extension granted as application was within allowable period.
Land appeal time limits — extension of time under s.41(2) LDCA — computation of appeal period from date certified copies obtained (s.19(2) Limitation Act) — discretion to extend time — authorities: Mbogo v Shah; Lazaro Mpigachai.
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29 July 2022 |
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Extension of time denied where alleged illegality was not apparent on the face of the tribunal decision and applicants were non-parties.
• Civil procedure – Extension of time – Application under section 14(1) Law of Limitations Act – requirement to account for delay. • Grounds for extension – alleged illegality in impugned decision must be apparent on the face of the record (Lyamuya principle). • Procedural standing – non-parties cannot complain of denial of hearing in proceedings to which they were not parties. • Factual complaints (misjoinder, omission of value) are not facial illegalities.
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29 July 2022 |
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Wrong statutory citation in an application for extension of time in land matters renders it incompetent.
Land law – Extension of time to file appeal – Proper statutory basis: section 41(2) Land Disputes Courts Act governs extensions in land matters; general Limitation Act provision (section 14) applies only where no specific law exists; wrong statutory citation renders application incompetent; overriding objective cannot cure a defect that goes to the root of the application.
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29 July 2022 |
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Leave to appeal granted where proposed grounds disclosed an arguable illegality and the decision was appealable.
Appeal — leave to appeal under s.5 Appellate Jurisdiction Act — whether grounds disclose arguable appeal/illegality on face of record — appealability of decision — prejudice to respondents.
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29 July 2022 |
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Alleged prolonged mental illness did not justify extension of time due to inadequate evidence and unexplained delay.
Extension of time — sufficiency of reasons and accounting for delay; mental illness as ground for extension — requirement for concrete medical evidence and demonstration of period of incapacity; non-compliance with Mental Health Act procedures noted; discretion to extend time refused.
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29 July 2022 |
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Negligence and uncorroborated affidavits do not constitute sufficient cause to set aside dismissal for non-appearance.
Civil procedure – setting aside judgment/dismissal for non-appearance – requirement to show sufficient cause; affidavit credibility and corroboration. Representation – proof of advocate's appearance and authority – failure to enter appearance undermines excuse for absence. Negligence of party or counsel – not sufficient cause to set aside dismissal for non-appearance. Change of judge – reassignment without notice does not automatically justify non-appearance.
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29 July 2022 |
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Leave to appeal granted where affidavit identified a prima facie point of law on ownership warranting Court of Appeal review.
Land law – leave to appeal to Court of Appeal – requirements under s.47(2) Land Disputes Courts Act – point of law of general importance, novelty, or prima facie arguable appeal required. Procedure – ex parte hearing permissible where respondent is duly served but does not appear. Precedent – application must demonstrate a point of law for the Court of Appeal’s attention (see Simon Kabaka Daniel).
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29 July 2022 |
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Court allowed extension where illegality was apparent on record but dismissed where alleged defects were factual and delay unaccounted for.
Civil procedure – Extension of time – Whether illegality on the face of the record justifies extension of time to file revision – apparent illegality versus factual issues requiring evidence; applicants’ duty to account for delay and show diligence.
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29 July 2022 |
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29 July 2022 |
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Applicants showed prima facie case and irreparable harm but failed to prove balance of convenience; injunction refused.
Land law – interim injunction – requirements: prima facie case; irreparable injury; balance of convenience – ownership dispute and alleged trespass – adequacy of damages – public interest considerations.
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29 July 2022 |
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Leave‑to‑appeal application filed after the prescribed 30 days was incompetent and struck out; extension of time was the proper remedy.
Civil procedure – leave to appeal – time limits under Court of Appeal Rules – competence of application filed after 30 days. Limitation – section 19(2) Law of Limitation Act – exclusion of time spent obtaining documents – not a substitute for applying for extension of time. Court of Appeal Rules – Rule 45 (time for filing) and Rule 49(3) (documents to accompany application) – procedural compliance and remedy for delay. Preliminary objection – procedural threshold for competency of applications.
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29 July 2022 |
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Second extension of time denied for failure to show good cause and to account for the delay.
Extension of time – second enlargement – requirement to show good cause and account for each day of delay; Competency/enabling provision – distinction between Section 93 CPC, Rule 10 Court of Appeal Rules and Section 11(1) AJA; Attachment of earlier ruling – not necessary; Misleading or unsupported evidence on follow-up of rulings undermines applicant's case.
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28 July 2022 |
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Advocate’s affidavit found sufficient to explain non-appearance; dismissed application restored and no costs awarded.
Civil procedure — Restoration of matters dismissed for want of prosecution — Sufficiency of an advocate’s affidavit to explain non-appearance and justify restoration. Evidence — Deponent of affidavit — when an advocate may properly depose to reasons for non-appearance. Principles — conduct before dismissal, interest of justice, and prejudice to respondents considered in restoration applications.
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28 July 2022 |
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Court recorded parties' Deed of Settlement under Order 23 Rule 3 and marked the suit settled.
Civil procedure – Consent judgment – Deed of Settlement – Recording of settlement under Order 23 Rule 3, Civil Procedure Code (Cap. 33) – Deed incorporated into consent judgment and suit marked settled.
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28 July 2022 |
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Spousal consent to mortgage upheld; statutory notice and sale after mortgage default were valid; suit dismissed.
Family law – presumption of marriage (s.160 Marriage Act) – matrimonial property. Property law – spousal consent to alienation/mortgage (s.59 Marriage Act). Evidence – burden and standard when alleging forgery/fraud in civil proceedings (higher standard; need for corroboration/expert or criminal complaint). Land registration – caveat, registrar’s notice and suspension of registration (s.78(6) Land Registration Act) and validity of transfer after mortgage default and auction.
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28 July 2022 |
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Applicant granted leave to defend summary suit after court found disputed triable issues over a contested auction sale.
Civil procedure – summary procedure – leave to appear and defend under Order XXXV Rule 2(2) & Rule 3(1) – requirement to disclose triable issues in affidavit. Property law – validity of sale by public auction – allegation of fraudulent sale and absence of affected party from prior proceedings. Procedural role – court at leave stage assesses existence of triable issues, not merits of the dispute.
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28 July 2022 |
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Matrimonial award confirmed plaintiff's ownership; sale by ex-husband invalid, buyer must vacate and title amended.
Matrimonial property – allocation by matrimonial judgment – effect on subsequent transactions Property law – nemo dat quod non habet – invalidity of sale by one without title Title and registration – revocation of Right of Occupancy to exclude encroached portion Evidence – credibility of witnesses and authenticity/endorsement of sale agreement Remedies – eviction, demolition of structures, costs; no award for unproven general damages
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27 July 2022 |
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Applicant failed to show good cause for extension of time to appeal; application dismissed with costs.
Land — Extension of time to file appeal — requirement to show good cause — oral submissions not evidence — must account for each day of delay — duty to follow up judgment delivery.
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27 July 2022 |
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Leave to appeal granted where applicant raised arguable issues about lack of service, failure to notify, and procedural irregularity.
Civil procedure – Leave to appeal – Discretionary, not automatic – Granted where proposed grounds raise issues of general importance or a prima facie arguable appeal; Land procedure – ex parte judgment – extension of time to set aside – issues of service/notice and procedural irregularity; Appellate threshold – merits not determined, only arguability assessed.
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27 July 2022 |
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DLHT improperly invoked s36 revision during execution, violating right to be heard and exceeding its limited revision scope.
Land Disputes Courts Act s36 — limited revision powers (contravention of law, natural justice, tribunal composition/jurisdiction); Execution proceedings — limits on invoking revision; Natural justice — right to be heard; Assessors — presence, section 23(3) compliance; Sufficiency of evidence — matter for appeal, not suo motu revision.
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27 July 2022 |
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Whether a land tribunal may decide ownership by adverse possession and limitation where parties litigate as estate administrators.
Land law – ownership dispute over house arising from probate transfers – doctrine of adverse possession invoked from evidence of long uninterrupted occupation; Limitation law – computation of accrual of cause of action in land recovery suits; Jurisdiction – distinction between probate and land matters; Procedure – framing issues and presence of assessors not fatal where assessors heard the case.
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26 July 2022 |
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Plaintiffs failed to prove outstanding loan balance without bank statements; suit dismissed and costs awarded.
Evidence — burden of proof (s.110 Evidence Act) — borrower-prepared statement of account insufficient without bank statements; Banking records — bank statements and pay-in slips are primary evidence of repayments and outstanding balances; Pleadings — parties bound by pleadings; court cannot grant unpleaded reliefs or counterclaims; Loan facilities — term loans, overdraft, bank guarantee, accrued interest and broker's fees relevant to indebtedness.
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26 July 2022 |
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Preliminary objections overruled: factual disputes on registrar notice and lack of identical parties defeat res sub judice claim.
Land law – transfer of registered title – effect of failure to challenge transfer before the Registrar; Civil procedure – preliminary objections must raise pure points of law; res sub judice – requirements under section 8 CPC (identity of parties, subject matter and reliefs) must be cumulatively established.
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26 July 2022 |
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Whether certificates of title obtained amid a pending dispute can be set aside for fraud and competing ownership upheld.
Land law – Ownership dispute over same parcel – Prima facie effect of registered certificate of title; fraudulently obtained titles; proof by balance of probabilities; admissibility and weight of sale agreements and possession; concubinage and property rights; limits of Land Division to order division of property; revocation/cancellation of titles by Land Commissioner.
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26 July 2022 |
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Registered owner established; demolition irregular as plaintiffs were not served, plaintiffs awarded general damages and costs.
Land law – ownership and priority of title – registered purchaser pre-dating subsequent informal sales; Execution of decree – requirement to effect proper service/notice before eviction and demolition; Reliefs – specific damages require pleading and proof; Fictitious parties – court identification and consequences.
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26 July 2022 |
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Illness must be proven and each day of delay accounted for to obtain extension of time to file a review.
Procedure – Extension of time – Applicant must show good cause; illness must be proven and causally linked to delay; must account for each day of delay. Evidence – Sickness/mental trauma requires medical proof or corroboration to justify delay. Civil procedure – Financial hardship not sufficient where applicant paid fees and engaged counsel; alternatives (waiver/legal aid) exist.
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26 July 2022 |
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Appellant’s sale agreement proved sole ownership; Tribunal erred by preferring unsupported oral claims of joint ownership.
Land law – proof of title – admissibility and weight of a sale agreement – oral testimony versus documentary evidence – unproven allegation of forged document – appellate review of Tribunal's evaluation of evidence.
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26 July 2022 |
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Typographical misdescription of verifier as an advocate in an affidavit is non-fatal and did not render the application incompetent.
Advocates Act s.2 – definition of "advocate" – incorrect description in verification clause; typographical error not fatal. Affidavit verification – mere misdescription – non-prejudicial and non-dispositive. Notary Public and Commissioner for Oaths Act s.8 – jurat requirement – objection raised in rejoinder rejected. Preliminary objections – overruled; costs awarded.
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26 July 2022 |
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Applicant failed to prove sufficient reasons or provide a reliable affidavit to set aside dismissal for want of prosecution.
Civil procedure – setting aside dismissal for want of prosecution – sufficiency of reasons – court record as authoritative – affidavits must contain facts within deponent’s personal knowledge – hearsay and untruth render affidavits unreliable.
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25 July 2022 |
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A tribunal may decline to hear a repeat ownership claim as functus officio where ownership was already finally decided.
Land law – ownership dispute – finality of tribunal decisions – functus officio prevents re-determination of issues already finally decided by the same Tribunal; execution and interlocutory objections; availability of alternative remedies (appeal/revision).
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25 July 2022 |
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Applicant failed to prove sufficient reasons to set aside a dismissal for want of prosecution; appeal dismissed with costs.
Civil procedure — setting aside dismissal for want of prosecution — discretionary relief under Order IX Rule 14 CPC — applicant must furnish sufficient, credible evidence (e.g., travel proof, legible medical certificate); failure to notify court or arrange coverage undermines claim.
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25 July 2022 |
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Temporary injunction granted to restrain auction where applicant, not party to mortgage, faces irreparable homelessness.
Interim injunction — Atilio tests (prima facie/serious question, irreparable harm, balance of convenience) — mortgage/Certificate of Occupancy dispute — non‑party occupier’s protection pending main suit.
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25 July 2022 |
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Applicant’s earlier valid sale prevailed over respondent’s later sale due to defective 2019 sale formalities.
Land law – Competing sale agreements – Evidential value of sale agreements and witness signatures – Ambiguous thumbprints undermine probative weight – Doctrine of priority: earlier purchase prevails – Burden to prove authority/consent to re-sell.
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25 July 2022 |
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Applicant granted 30-day extension to file revision after demonstrating diligence and promptness in challenging Tribunal decision.
Land procedure – Extension of time – Application for revision – Good cause/good cause test: promptness, explanation of delay and diligence – Section 14(1) Law of Limitation Act; Rule 41 Land Disputes Courts Act; section 95 CPC – Execution of decree – Objection proceedings and subsequent applications as evidence of diligence.
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25 July 2022 |
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An appellate court will not consider new grounds not raised and decided in the lower tribunal; appeal dismissed with costs.
Appellate procedure – limitation to matters raised and decided below; inadmissibility of new grounds on second appeal; appellate review of lower tribunal decisions; afterthought grounds and non-joinder arguments raised for first time.
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25 July 2022 |
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Leave to appeal granted where applicant’s constitutional right and prima facie grounds justify Court of Appeal scrutiny.
Land law – Leave to appeal under s.47(1)&(2) Land Disputes Courts Act; constitutional right to be heard (Art.13(6)(a)); requirement of prima facie grounds for leave; appellate procedure.
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25 July 2022 |
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Default judgment for rent arrears granted; specified ‘general’ damages denied for lack of pleading and proof.
Summary procedure – Order XXXV Rule 2(2) CPC – defendant’s failure to obtain leave to defend; Default judgment for unpaid rent; Damages law – specified ‘general’ damages become special damages and require pleading and proof; Interest at bank rates and costs awarded.
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25 July 2022 |
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A bill of costs filed when a judgment copy is collected is timely; taxation without hearing is irregular and set aside.
Advocates Remuneration Order 2015 (Order 4) — limitation for filing bill of costs runs from when a copy of the decision is availed/collected; Taxation procedure — parties must be given opportunity to address the bill of costs; failure to hear renders taxation irregular; Reference under Remuneration Order is proper remedy to challenge taxed bill.
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25 July 2022 |
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High Court lacks jurisdiction to revise a tribunal decision already decided on appeal by the High Court; application dismissed with costs.
Civil procedure – Jurisdiction – Preliminary objection on jurisdiction may be raised at any stage before disposal and must be decided before merits. Functus officio – High Court cannot revise or revisit its own appellate decision; revision of a subordinate court decision already decided on appeal by the High Court is impermissible. Section 79(1) Civil Procedure Code – High Court’s competence to call for subordinate court records does not allow revision of its own decisions. Remedy – challenge against High Court’s appellate judgment lies to the Court of Appeal.
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23 July 2022 |
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Mortgage of a matrimonial home without spousal consent is unlawful; lender must make statutory inquiries before accepting it as security.
Family law; matrimonial home — definition and protection; requirement of spousal consent for alienation including mortgage (Law of Marriage Act s59); lender’s duty to inquire before accepting spouse’s sole-registered land as security (Land Act s161(3)(a)); effect of absent spousal consent — invalidity of mortgage.
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22 July 2022 |
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A mortgage over a matrimonial home is unlawful without the non‑consenting spouse’s documented consent; lenders must make statutory inquiries.
Family law – matrimonial home – definition and protection – purchase during coverture creates presumption of matrimonial home. Land law – lender’s duty under s.161(3)(a) Land Act to inquire into borrower’s marital status before accepting mortgage over dwelling. Law of Marriage Act s.59 – spousal consent required for alienation (including mortgage) of matrimonial home. Validity of mortgage – absence of documented spousal consent renders mortgage unlawful and unenforceable against non-consenting spouse.
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22 July 2022 |
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Reference struck out for failure to serve respondent within seven clear days from registry endorsement of the chamber summons.
Advocates Remuneration Order — Order 7(3) — seven clear days for serving parties — time runs from filing/registry endorsement; mandatory nature of 'shall' — reference struck out if service late; omnibus objection abandoned.
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22 July 2022 |
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An appeal challenging a taxed bill of costs was incompetent; such taxation must be contested by reference or on grounds of irregularity.
Land law – Costs – Taxation of bill of costs by District Land and Housing Tribunal – Appealability of execution orders – Proper procedure to challenge taxation is by reference or where irregularity shown – Incompetent appeal struck out.
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22 July 2022 |
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A prior dismissal for want of prosecution bars the applicant’s subsequent suit on the same land, including purchasers as privies.
Civil procedure – Res judicata – Application of section 9 CPC and Paniel Lotta five‑part test; constructive res judicata where prior suit dismissed for want of prosecution; privity by purchase; distinction between dismissal and striking out.
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22 July 2022 |
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Certificate of title and transfer established the plaintiff's ownership; defendant failed to prove fraud and must vacate.
Land law — transfer under power of sale and registration; certificate of title as conclusive evidence of ownership absent proof of fraud; pleading and proof of fraud require particulars and high degree of probability; right of registered owner to possession; joinder issues where company and director/shareholder are involved.
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22 July 2022 |
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Failure to state the plaint’s monetary value under Order VII r.1(i) is fatal; specific claim below statutory threshold placed matter outside High Court jurisdiction.
Civil procedure — Order VII r.1(i) CPC — plaint must state monetary value of subject matter for jurisdiction and court fees; Pecuniary jurisdiction determined by substantive/specific claim not general damages; Land Disputes Courts Act s.37 — High Court jurisdiction thresholds; failure to state value is fatal — suit struck out.
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21 July 2022 |
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Pre‑enactment oral purchase plus long, undisturbed possession can establish ownership despite lack of written title.
Land law – ownership proof by oral pre‑enactment sale and long uninterrupted possession; non‑retroactivity of Land Act and Village Land Act; assessors’ opinions and requirement for tribunal to explain divergence; effect of failure to cross‑examine; adequacy and rationality of judicial reasons.
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21 July 2022 |