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Citation
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Judgment date
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| October 2022 |
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Unproven phone-notice of rescheduling does not constitute good cause to set aside dismissal for want of prosecution.
Land procedure – setting aside dismissal for want of prosecution; Order IX r.6(1) & s.95 CPC – discretion to restore suit requires demonstration of good cause; uncorroborated allegation of telephone rescheduling insufficient to justify restoration.
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19 October 2022 |
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An advocate may swear an affidavit if personally knowledgeable, but unexplained delay to file a reference warrants refusal of extension.
Civil procedure — Affidavits — Advocate may swear affidavit if deponent has personal knowledge; limited by Order XIX r.3(1). Civil procedure — Verification clause — challenges to verification must show lack of personal knowledge; not every defect is incurable if deponent had knowledge. Limitation — Extension of time to file reference under Advocate Remuneration Order (Order 7(2)) requires satisfactory explanation for delay; delay computed from date of delivery of decision. Evidence — Proof of prior requests for certified copies may be required to justify delay in filing.
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19 October 2022 |
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Advocate may swear affidavit if personally knowledgeable, but unexplained 54-day delay justified dismissal of extension application.
Land law — Extension of time to file reference under Advocates Remuneration Order; Civil Procedure — Order XIX R.3(1) — Advocate may swear affidavit if deponent has personal knowledge; Limitation — Section 19(2) Law of Limitation Act — exclusion of time for obtaining certified copies requires written request; failure to account for delay — dismissal with costs.
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19 October 2022 |
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Prompt pursuit of a struck-out leave application constituted sufficient cause to grant extension of time to seek leave to appeal.
Land procedure – Extension of time to file application for leave to appeal – Explanation for delay – Prior application for leave struck out on technical grounds constituting sufficient cause – Applicant’s diligence – Costs in the cause.
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19 October 2022 |
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Court granted extension to file appeal, finding counsel’s excusable delay amounted to sufficient cause.
Civil procedure – extension of time – application under s.41(1)&(2) District Land and Housing Tribunal Act – requirement to show good cause; factors: length of delay, reason, diligence, arguable appeal, prejudice. Excusable delay – delay attributable to advocate’s temporary incapacity and technical delay in obtaining copies can constitute sufficient cause. Negligence by counsel – minor lapses or oversight may justify enlargement of time (Mbogo; Felix Tumbo Kisima; Zuberi Mussa).
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19 October 2022 |
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Court overruled objections on municipal jurisdiction and non-joinder of the Attorney General in extension application.
Land law – municipal boundary changes – effect of creation of new municipal council on pending or concluded proceedings. Civil procedure – preliminary objections – competence and locus of the subject matter following local government reorganization. Government proceedings – non-joinder of the Attorney General – intervention under section 6A of the Government Proceedings Act.
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18 October 2022 |
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Applicant’s five‑year delay without showing apparent illegality or accounting for the delay warranted dismissal.
Land law; extension of time — good cause required; delay of over five years; illegality must be apparent on the face of the record to justify extension.
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18 October 2022 |
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18 October 2022 |
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An applicant cannot seek extension to appeal after the High Court has already dismissed the same appeal as time‑barred; application is incompetent.
Land law – extension of time to appeal – application incompetent where earlier appeal against same decision was dismissed as time‑barred; functus officio; procedural competence of extension applications.
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18 October 2022 |
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Unsigned witness records and unread assessors’ opinions rendered DLHT proceedings null; matter remitted for retrial.
Land disputes — District Land and Housing Tribunal — requirement to sign witness evidence (Order XVIII r.5 CPC via s.51(2) LDCA) — unsigned evidence unauthenticated and taints proceedings; Assessors — Regulation 19(2) — written opinions must be read to parties — failure renders proceedings without assessors’ aid and is incurable; Procedural irregularities — inconsistency in party capacity; Revisionary powers — s.43(1)(a) LDCA — nullification and remittal for trial de novo.
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18 October 2022 |
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Preliminary objections dismissed: injunction in plaint acceptable, land description sufficient, non-joinder of seller not fatal.
Land law – preliminary objections — plaint must describe immovable property sufficiently (Order VII r.3 CPC) — inclusion of injunction in plaint not necessarily fatal — joinder of seller not required where no cause of action against seller; facts distinguish authorities.
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18 October 2022 |
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Appellants failed to prove lack of Ward Tribunal jurisdiction and respondent's evidence prevailed; appeal dismissed with costs.
Land disputes — Ward Tribunal pecuniary jurisdiction — burden on party raising jurisdictional challenge to prove value — valuation evidence required; Evidence — weight and credibility — corroborated sale agreement and witness outweigh conflicting lay assertions; Practice — ignorance of formalities by lay parties not an excuse; Precedent — heavier evidence principle (Hemed Said v Mohamed Mbilu).
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17 October 2022 |
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High Court upheld lower tribunals: palm oil tree, not road, is boundary; trespass accrues on trespass date; appeal dismissed with costs.
Land law – boundary disputes – sufficiency and credibility of oral evidence – acceptability of seller and witness testimony where original boundary markers exist. Procedure – appellate review – second appeal cannot entertain issues not raised in first appeal; tribunal relies on record and need not call new evidence. Limitation – cause of action in trespass accrues on alleged trespass, not on date of purchase. Evidence – courts may prefer oral testimony on record over unsupported later assertions about boundaries.
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17 October 2022 |
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A Mareva injunction was granted to restrain eviction pending expiry of the statutory 90‑day notice to sue the government.
Mareva injunction — pre‑suit freezing/interim relief; intention to sue and steps taken as core requisites; Injunction law — Atilio v Mbowe requirements not strictly conjunctive for Mareva relief; Interim relief in lease disputes — preservation of status quo pending statutory notice period.
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17 October 2022 |
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Assessors' partial participation and unclear attendance rendered tribunal proceedings a nullity, requiring retrial before a new chairman.
Land Disputes Courts Act s.23(2),(3) – assessors must actively participate and give opinion before judgment – vague/incomplete attendance records and partial assessor involvement render proceedings a nullity – trial record presumed accurate but may be impeached where clear inconsistency – remedy: quash and remit for retrial.
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17 October 2022 |
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Court granted leave to appeal under section 47(2), finding sufficient grounds and an uncontested application.
Leave to appeal – section 47(2) Land Disputes Courts Act – discretion to grant leave; appeal not automatic; advocate’s negligence as possible ground for relief; uncontested/ex parte application considerations.
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17 October 2022 |
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Revision dismissed for failure to show material error or denial of the right to be heard in execution proceedings.
Land law – Revision under section 43(1)(b) LDCA – applicant must show error material to merits involving injustice Civil procedure – execution of tribunal decree – effect of stay and abandonment of applications to set aside ex parte decisions Procedural fairness – right to be heard (audi alteram partem) – opportunity to be heard and consequence of failing to object
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17 October 2022 |
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Applicant failed to account for each day of delay; extension of time to file revision dismissed with costs.
Extension of time – application under Section 14(1), Law of Limitation Act – requirement to show good cause; Delay – duty to account for each day of delay; Prior proceedings – prosecuting earlier application does not automatically excuse subsequent unexplained delay; Procedural requirements – sufficiency of affidavit and the need for explanations/reply.
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17 October 2022 |
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Applicant's extension of time under section 93 CPC dismissed for failure to adequately account for the delay.
Civil procedure – Extension/enlargement of time under section 93 CPC – discretionary relief – necessity to account for each day of delay. Evidence – adoption of affidavit paragraphs – omission not necessarily fatal where reasons are otherwise explained. Procedural competence – technical defects/struck out applications and ignorance of law not sufficient reason for extension without proper explanation.
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17 October 2022 |
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Appellants’ admissions of trespass and a properly constituted tribunal warranted dismissal of the appeal.
Land law – Ward Tribunal quorum – compliance with section 4(4) Ward Tribunal Act – secretary’s signature not equating membership. Evidence/representation – tendering documents by a representative or knowledgeable person – not fatal where parties admit facts. Possessory/trespass findings – admissions by appellants can establish trespass and remove need for further ownership proof. Appeals – appellate courts will not disturb findings supported by trial admissions and compliant tribunal procedure.
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13 October 2022 |
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Whether an agreement must be in writing to be proved where it was not reduced into writing.
Land law; evidence; oral contract vs written agreement; admissibility and proof of land sale; certification of point of law to Court of Appeal.
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13 October 2022 |
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Tribunal’s misdirection on administrator status amounted to illegality warranting revision and retrial.
Land law – revision under s.43(1)(b) Land Disputes Courts Act – administrator status – Form No. IV as proof of appointment – tribunal misdirection and illegality – quashing and remittal for retrial.
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13 October 2022 |
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High Court lacks jurisdiction to grant stay of execution when the matter is pending before the Court of Appeal.
Stay of execution – Jurisdiction – Effect of proceedings pending in the Court of Appeal (including review by notice of motion) – High Court lacks concurrent jurisdiction to grant stay once matter is before Court of Appeal (Aero Helicopter principle).
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13 October 2022 |
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A land judgment reached without affording an affected person a hearing was quashed and remitted for retrial with pleadings amended.
Land law – Revision under s.43(1)(b) of the Land Disputes Courts Act – Quashing tribunal decision for denial of hearing. Administrative law / natural justice – audi alteram partem – failure to afford a person hearing renders decision nullifiable. Procedure – remit for retrial before another chairman; amendment of pleadings to include omitted party; expedited case scheduling.
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13 October 2022 |
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A revision application duplicating a pending tribunal application is an abuse of court process and was struck out with costs.
Land procedure – Abuse of court process – Forum shopping – Parallel proceedings in different jurisdictions where parties, subject matter and reliefs are identical; court may strike out proceedings – Judicial notice of uncontested documentary attachments to affidavits.
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13 October 2022 |
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Suit dismissed: res judicata against 2nd defendant and time‑barred claims against remaining defendants.
Land law – limitation – Item 22 Part I, Law of Limitation Act – 12‑year prescription for recovery of land; claim held time‑barred. Res judicata – prior final Court of Appeal judgment on same subject and reliefs – claim against second defendant barred. Civil procedure – preliminary objections – points of law (res judicata and limitation) may dispose suit without trial.
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12 October 2022 |
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High Court lacked jurisdiction to decide taxation after a lodged notice of appeal and Court of Appeal stay of execution.
Jurisdiction — Effect of Notice of Appeal and Court of Appeal stay of execution — High Court becomes functus officio; Taxation proceedings — whether taxation/execution may proceed pending appeal; Point of law on jurisdiction may be raised at any stage; Nullification of taxation where appellate stay and notice of appeal subsist.
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12 October 2022 |
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Extension granted despite inordinate delay because judgment contained an apparent illegality about property description.
Land appeal – extension of time under s.11(1) AJA – requirement to account for each day of delay and exercise of diligence – apparent illegality on face of record (unclear property description/contradictory findings) justifying extension – authorities: TANAPA v Magombi; Lyamuya; Principal Secretary v Dervan Vaambia; Eqbai Ebrahim v Wahiyungi.
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11 October 2022 |
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Appeal struck out for incompetence due to an uncertain petition and introduction of new grounds without proper specification.
Civil procedure — Appeal competency — Certainty of petition of appeal — Introduction of new grounds in written submissions — Appeal originating from review — Striking out incompetent appeal; costs ordered.
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11 October 2022 |
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Whether an execution application filed under a wrong/non-existent provision is amendable or must be struck out.
Civil procedure – Execution – Competency of application filed under alleged non-existent provision (Order XXI Rule 10(1) CPC) – Preliminary objection on point of law – concession by applicant – remedy is striking out, not amendment.
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11 October 2022 |
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11 October 2022 |
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Court granted a temporary injunction preventing respondents from dealing with the disputed land pending determination of the main suit.
Civil procedure – Interim relief – Temporary injunction pending the main suit – Restraining transfer or dealing with land title. Procedural law – Order XXXVII Rule 1(a) and sections 68(c),(e) and 95 CPC – basis for injunction application. Practice – Effect of respondents’ concession and non-opposition on granting interlocutory relief. Presence/absence – Granting relief despite applicant’s absence where there is no opposition.
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11 October 2022 |
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Appeal struck out: Tribunal’s jurisdictional ruling was interlocutory and not appealable under section 74(2) CPC.
Civil procedure – interlocutory/preliminary rulings – appealability – section 74(2) CPC; Order XL R.1(a) CPC inapplicable to chamber summons; remedy by revision where no appeal lies.
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10 October 2022 |
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A decree against an individual chairman is not executable against village-owned land; misjoinder rendered the execution order void.
Land law – Executability of decree – Execution cannot be levied on property not owned by the judgment debtor. Civil procedure – Revision vs appeal – Revision permissible where decree is plainly questionable. Corporate status of local government – Village council capable of suing and being sued; misjoinder of parties vitiates decree. Evidence – Locus in quo/site visit and use of hostile witnesses raised but core defect was misjoinder.
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10 October 2022 |
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Court records and gives effect to a Deed of Settlement complying with Order 23 Rule 3 as a consent judgment.
Land law – Settlement by Deed – Consent judgment – Court’s power to record a Deed of Settlement complying with Order 23 Rule 3 Civil Procedure Code – Deed forming part of judgment and decree.
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10 October 2022 |
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A temporary injunction was granted restraining eviction or title transfer pending resolution of the main land suit.
Land — Temporary injunction — Preservation of status quo pending suit; Bona fide purchaser at public auction — possession and improvements; Risk of breach of peace from threatened eviction; Unopposed/conceded application — grounds for interlocutory relief.
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10 October 2022 |
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Court recorded parties' Deed of Settlement under Order 23 Rule 3 as consent judgment, marking the suit settled.
Land law – Consent judgment – Deed of Settlement – Court authority to record settlement under Order 23 Rule 3 of the Civil Procedure Code – Deed becomes part of consent decree; suit marked settled.
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10 October 2022 |
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Preliminary objections on administrator's inventory and limitation dismissed; cause of action accrues on alleged trespass.
Land law — preliminary objections — administrator's compliance with Rule 10(1) GN No.49 of 1971 — evidential matter not dispositive; Limitation Act (Cap 89) s.24(1) — accrual of cause of action — trespass date governs computation; costs in the cause.
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10 October 2022 |
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Execution cannot lawfully effect eviction where the original decree is purely declaratory; tribunal exceeded its mandate.
Land law – Execution of decrees – Declaratory decree; Execution cannot grant possession or eviction beyond decree; Tribunal exceeded jurisdiction in execution; Revision under s.43 Land Disputes Courts Act; Regulation 23(3) GN.174/2003 (s.38 CPC); reliance on Mohinder Singh authority.
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7 October 2022 |
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Leave to appeal in land matters must be sought under the Land Disputes Courts Act; wrong citation renders the application incompetent.
Appellate procedure – Leave to appeal in land matters must be sought under section 47(2) of the Land Disputes Courts Act; wrong citation of statute renders application incompetent. Civil procedure – Non-compliance with court-ordered submissions may result in ex parte determination of preliminary objections. Pleadings – Wrong or non-citation of relevant law renders the court improperly moved and application liable to be struck out.
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7 October 2022 |
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Leave to appeal in a land matter struck out for wrong statutory citation; applicant ordered to pay costs.
Land law – Leave to appeal to Court of Appeal from High Court in land matters governed by s.47(2) Land Disputes Courts Act; Civil procedure – Wrong citation/non-citation of relevant statute renders application incompetent and court not properly moved; Civil procedure – Verification of affidavits (Order VI r.15(2) CPC) and competency of pleadings; Procedure – Failure to comply with court-ordered written submissions can lead to ex parte determination.
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7 October 2022 |
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Applicant granted 30‑day extension to file reference after court found alleged illegality and procedural irregularity in taxed Bill of Costs.
Advocates Remuneration Order – attendance and instruction fees; Illegality as sufficient cause for extension of time; Rule 8(1) GN No. 263 of 2015 – extension to file reference; Procedural irregularity – non-notification of delivery of Ruling.
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7 October 2022 |
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Leave to appeal refused where proposed appeal lacked arguable merits and challenged administrative execution steps.
Land law — Execution of appellate decree — Commissioner for Lands' power to order surrender of certificates and subdivide plots — Leave to appeal — Discretionary grant requires prima facie/arguable appeal or issues of general importance.
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7 October 2022 |
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A consent judgment entered without hearing a recognized party violated the applicant’s constitutional right to be heard.
Constitutional law – right to be heard – Article 13(6)(a) (natural justice) Civil procedure – consent judgment/settlement arising during proceedings – new issues must be placed on record and parties heard Revisional jurisdiction – court may set aside tribunal consent judgment procured without hearing a recognized party
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7 October 2022 |
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Whether an unstamped sale agreement was admissible and certifiable as a point of law for appeal.
Land law – Appeal procedure – Certificate on point of law under s.47(3) Land Disputes Courts Act; Evidence – Admissibility of unstamped documents; Stamp Duty Act – Effect of unstamped instrument on admissibility; Fact versus law – date discrepancies on agreement are factual issues.
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7 October 2022 |
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Failure to take judicial notice of court vacation and to record assessors' opinions vitiated the Tribunal's dismissal; appeal allowed and remitted.
Land procedure – requirement for District Land and Housing Tribunal chairman to sit with at least two assessors and to record/consider their opinions (ss. 23–24, Cap. 216 R.E. 2019). Civil procedure – Regulation 13(2) GN No. 174/2003 – dismissal for absence of advocate; necessity to take judicial notice of court vacation (s. 59(1)(g) Evidence Act). Procedural irregularity – failure to involve assessors vitiates Tribunal’s decision.
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7 October 2022 |
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Administratrix’s inheritance claim succeeds; defendants are trespassers; mesne profits claim fails for lack of proof.
Land law – inheritance and succession – proof of title and conveyance – unsigned letters of offer and telegrams do not effect transfer of registered land. Evidence – admissibility of registry documents and defective exhibits; tentative admission permissible but defective documents excluded. Civil damages – mesne profits are special damages requiring specific pleading and strict proof. Property – trespass and reliefs: vacant possession and injunction.
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7 October 2022 |
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Leave to appeal was granted where arguable legal issues and alleged illegality (including locus standi) warranted Court of Appeal scrutiny.
Appellate jurisdiction – leave to appeal out of time – s.5(1)(c) Appellate Jurisdiction Act and Rules 45(a), 47 of the Court of Appeal Rules. Procedural irregularity/illegality as a ground for leave. Locus standi – application against a respondent; whether proper application of the maxim. High Court’s role in granting leave versus deciding substantive merits.
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7 October 2022 |
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A second appellate court will not entertain new grounds or disturb concurrent factual findings absent demonstrated misdirection or miscarriage of justice.
Appeals — second appeal — limitation to issues raised and decided below; concurrent findings of fact — binding absent misdirection, misapprehension or miscarriage of justice; inadmissibility of fresh evidence in written submissions; procedure and composition of Ward Tribunal (s.11) raised but not decided below.
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7 October 2022 |
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Applicant's revision partly time-barred and improperly filed; challenge to execution required a fresh suit under Order XXI R.62.
Land law – revision of tribunal/appeal decisions – applicability of Law of Limitation Act (Item 21) and sixty-day rule for applications where no specific limitation provided. Civil procedure – revision jurisdiction of High Court under section 43 Land Disputes Courts Act – temporal limits and proper remedy. Execution proceedings – challenge to execution order not by revision but by fresh suit under Order XXI Rule 62 CPC to establish title. Evidence/procedure – competency and timely objection to affidavits; composition of Ward Tribunal raised but not dispositive. Limitation law – distinction between sections 24(2) and 25(2) regarding death and computation of limitation period.
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7 October 2022 |