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Citation
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Judgment date
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| October 2022 |
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Court declines to disturb Taxing Officer’s taxation, finding instruction, attendance and bill-handling fees reasonable and properly exercised.
Costs — Taxation of advocates’ bills — Instruction fees — Eleventh Schedule item 1(k) — Attendance allowances — Eighth Schedule item 23 — Fee for handling Bill of Costs — Discretion of Taxing Officer — Standard for interference: injudicious exercise, wrong principle or wrong consideration.
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6 October 2022 |
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Leave to appeal granted on arguable issues about a sale agreement’s description, enforceability and contradictory witness evidence.
Leave to appeal – discretionary grant where prima facie/arguable grounds or irregularities exist – issues on enforceability and description of sale agreement; reliance on contradictory witness testimony; unstamped document point refused as not raised at trial.
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6 October 2022 |
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Appeal allowed because tribunal proceedings were irregular: assessors' presence/opinions not properly recorded, retrial ordered.
Land law/procedure – composition of District Land and Housing Tribunal – requirement that tribunal sit with chairperson and not less than two assessors (s.23 Cap 216). Assessors – necessity that assessors present throughout, give written opinions, and that those opinions be recorded and read before judgment. Procedural irregularity – silence in record about assessors’ presence/opinions renders proceedings and judgment invalid. Case management – reassignment under BRN permissible if reasons are given.
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6 October 2022 |
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Appellate court quashed tribunal judgment, finding mis-evaluation of evidence and unjustified nullification of the appellant’s residential licence; appellant declared owner.
Limitation – recovery of land – 12‑year period runs from date cause of action (trespass/occupation) accrues, not from owner’s death. Evidence – appellate reassessment where trial tribunal misdirected in weighing documentary and oral evidence; need for adequate proof of ownership. Title/licence – nullification of a residential licence requires proof (e.g., fraud) and must be a pleaded/decided issue. Civil Procedure – decree may be signed by successor chairperson under Order XX Rule 8 CPC when predecessor has vacated office.
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6 October 2022 |
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Interim injunction refused: prima facie case shown but no proven irreparable harm, application dismissed without costs.
Civil procedure — Interim injunction — Application tested against Atilio v Mbowe three-pronged test (prima facie case; irreparable injury; balance of convenience). Evidence — Irreparable loss requires proof that monetary compensation is inadequate; absence of documentation (building permit in another name; no proof of acquisition costs) defeats claim. Public interest — Ongoing public utility works (water pipelines) and access for maintenance are relevant in assessing balance of convenience.
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6 October 2022 |
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Affidavits must verify every paragraph/subparagraph and disclose information sources; curable defects warrant leave to file a fresh affidavit.
Affidavit verification — verification must reference all numbered paragraphs and subparagraphs; Order XIX Rule 3 CPC — statements on information must disclose source; Defective verification — whether incurable or amendable; Remedy — leave to file fresh properly verified affidavit where defects curable; Relevant authorities — Salma Vuai Foum; Phantom Modern Transport; Sanyou Service Station; Lisa E. Peter.
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6 October 2022 |
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Extension of time refused where delay was unexplained and counter‑affidavits with defective verification were struck out.
Land appeal — Extension of time — Application of Lyamuya guidelines — Accounting for delay, diligence, inordinate delay — Affidavit verification — Defective verification clauses incurably defective and struck out — Alleged illegality must appear on face of record to warrant extension.
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6 October 2022 |
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Applicant established the Atilio v Mbowe requirements; temporary injunction restraining sale of mortgaged property granted.
Civil procedure – interlocutory injunction – requirements: prima facie case, irreparable harm, balance of convenience (Atilio v Mbowe). Mortgage law – power of sale – lawfulness of sale and requirement to prove service of default/notice. Interim relief – temporary injunction restraining sale of mortgaged property pending main suit.
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6 October 2022 |
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Whether a preliminary-objection amendment was properly allowed; court held amendment permissible, no prejudice, application dismissed with costs.
Civil procedure – Amendment of pleadings – Where Regulations are silent resort to CPC (Order 6 Rule 17) – amendments allowed to determine real questions in controversy. Pleadings – preliminary objections – amendment of notice of preliminary objection permissible if not prejudicial or mala fide. Principles – amendments allowed before judgment; must promote justice; tribunal must set parameters and time limits.
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6 October 2022 |
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Court granted extension of time to file appeal, finding the applicant sufficiently explained delay and showed bona fide efforts.
Land procedure – Extension of time to lodge appeal – Whether sufficient cause shown for delay – Exercise of judicial discretion – Applicant’s efforts to obtain copies of decision – Right to appeal as constitutional right – Section 41(1) & (2) Land Disputes Courts Act.
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5 October 2022 |
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Bank failed to prove lawful mortgage execution; absence of material witnesses warranted adverse inference and appeal dismissed.
Land law – mortgage validity where registered owner had died before purported execution; Evidence Act s.110 – burden of proof; failure to call material witnesses – adverse inference (Hemed Said v Mbilu); application of analogous precedent; spousal consent issues under the Land Act (considered but not determinative).
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5 October 2022 |
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Extension of time granted despite unexplained delay, court emphasizing overriding objective and right to appeal.
Land law – extension of time to file appeal under s.41(2) Land Disputes Courts Act; whether delay excused by obtaining judgment copies; computation of limitation period – s.19(2) Law of Limitation Act; application of Lyamuya factors; overriding objective and constitutional right to appeal.
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5 October 2022 |
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Applicants claiming ownership of disputed land were properly joined as necessary parties under Order 1 Rule 10(2) CPC.
Civil procedure – Joinder of parties – Order 1 Rule 10(2) CPC – Necessary parties – Land dispute – Competing ownership claims – Prevention of multiplicity of suits.
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5 October 2022 |
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Illegality apparent on the face of record justified extension of time to file a notice of appeal despite delay.
Civil procedure — Extension of time — Whether illegality on the face of the record constitutes sufficient reason to extend time to appeal. Land law — Mortgage and matrimonial property issues — spousal consent, mortgagor/mortgagee duties under Land Act, Law of Marriage Act and Mortgage Financing Regulations. Procedural law — Delay and accounting for days of delay — effect of asserted facial illegality on requirement to account.
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5 October 2022 |
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Proceedings conducted without the required assessors were a nullity; appellate court quashed judgment and ordered a retrial.
Land Disputes Courts Act (Cap. 216) — Section 23(1)-(3): requirement that Tribunal sits with a chairman and not less than two assessors; assessors must give opinion before judgment; necessity to record reasons if proceeding with fewer assessors. Procedural law — irregular or inconsistent attendance of assessors renders trial proceedings a nullity. Revisionary powers — Section 43(1)(b): High Court may quash proceedings and order de novo hearing before a new chairman and assessors. Case law — reliance on precedents holding that changes or unclear involvement of assessors invalidate trials (e.g., B.R. Shindika).
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5 October 2022 |
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A stay of execution requires satisfying Order 39(5)(3) preconditions, including mandatory security and particularised irreparable loss.
Stay of execution — Order 39 Rule 5(1) & (3) CPC — pre-conditions: substantial/irreparable loss, absence of undue delay, mandatory security for due performance — pending extension application not automatic stay — particulars of irreparable loss required — pleadings bind parties.
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5 October 2022 |
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Revision dismissed: appellate finding on locus in quo and execution upheld; new grounds not entertained.
Land law – Revision jurisdiction under section 43(1)(a) – Execution of decree for demolition – Locus in quo inspection – Whether execution overtaken by events – Issues not raised at lower tribunals cannot be entertained on revision.
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5 October 2022 |
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Court granted extension to file appeal after finding delay accounted for and technical, but no illegality in the impugned judgment.
Civil procedure – extension of time to file notice of appeal – application under s.11(1) Appellate Jurisdiction Act – application of Lyamuya guidelines (account for delay, not inordinate, diligence, other sufficient reasons). Alleged illegality – suo motu raising of name discrepancy and alleged denial of hearing – Court of Appeal precedent and res judicata. Technical delay – pursuit of rights through mistaken or wrong procedure may justify extension.
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5 October 2022 |
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Extension granted where ex parte judgment was delivered without mandatory notice, constituting illegality and causing injustice.
Land law — Extension of time to file appeal — Illegality of impugned decision (ex parte judgment without notice) as sufficient cause; mandatory notice under Order XX Rule 1 CPC; Section 41(1)&(2) Land Disputes Courts Act; Principal Secretary v Devram Valambhia applied.
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5 October 2022 |
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Application to set aside an ex parte judgment was properly dismissed as overtaken by events; appeal dismissed with costs.
Land law – application to set aside ex parte judgment – doctrine of being overtaken by events – right to be heard – effect of appellate judgment on subordinate proceedings – discretion to award costs.
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5 October 2022 |
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Reference dismissed as time‑barred and procedurally defective for failure to comply with Order 7(2) and 7(3).
Advocates Remuneration Order 2015 – Order 7(2): time limit for reference (21 days) – non‑compliance renders Reference incompetent; Order 7(3): requirement to serve respondents within seven days – procedural non‑compliance; preliminary objections – prohibition on filing a pre‑emptive second preliminary objection.
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5 October 2022 |
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Appeal filed by memorandum instead of petition was incompetent; overriding objective cannot cure mandatory procedural defects.
Land law — Procedure — Appeal to High Court — requirement under section 38(2) LDCA that appeals be by Petition of Appeal filed in the District Land and Housing Tribunal; Procedural law — Overriding objective — limits to curing mandatory procedural defects and competence of proceedings; Civil procedure — Competency of appeal — Memorandum vs Petition of Appeal; Preliminarily objection — striking out incompetent appeals.
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4 October 2022 |
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Applicant's failure to serve summons and absence of proof justified tribunal's strike out; revision dismissed with costs.
Land law – District Land and Housing Tribunal – service of summons – Land Disputes Courts Regulations GN. No. 174 of 2003 (Regs. 5 & 6) – power to enforce or strike out for non-compliance – obedience to court orders – Revision under s.43 Land Disputes Courts Act read with s.51(1) and s.79 Civil Procedure Code – requirement of affidavit proof of service.
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4 October 2022 |
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Application struck out for incompetence because the supporting affidavit failed to show authorization and omitted other applicants.
Practice and procedure – Chamber summons must be supported by an affidavit (Order XLIII r.2 CPC) – Where multiple applicants exist each must depose or a deponent must expressly state authorization to depose for others (Order XIX r.3 CPC) – Defective/ambiguous affidavit renders application incompetent – Supplementary affidavits cannot cure absence of a proper foundational affidavit – Overriding objective cannot displace mandatory procedural requirements.
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4 October 2022 |
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Delay in obtaining tribunal copies and arguable illegality amounted to good cause for extension to file appeal.
Civil procedure — Extension of time — Good cause — Delay in obtaining copies of judgment and proceedings; time awaiting copies excluded from computation. Civil procedure — Extension of time — Illegality — Conflicting earlier decisions and hearing afresh as point of law justifying extension. Land law — Appeals from District Land and Housing Tribunal — Procedural compliance and computation of limitation period.
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4 October 2022 |
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Subsequent land claim barred by res judicata: purchaser was in privity and bound by earlier Ward Tribunal decision.
Land law – res judicata – Section 9 Civil Procedure Code – identical subject matter – privity of title (purchase) – preliminary objection – District Land and Housing Tribunal – Ward Tribunal decision – execution and demolition.
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4 October 2022 |
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Appellate court restored ward tribunal ownership finding; sale invalid because seller lacked proven title; DLHT erred in raising new point without hearing parties.
Land law – ownership dispute – appellate review of concurrent findings of fact – nemo dat quod non habet – procedural fairness: court raising new point suo motu requires parties be heard – typographical errors in records not fatal absent miscarriage of justice.
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4 October 2022 |
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A revision filed after the 60-day limitation period is time-barred; limitation is jurisdictional and may be raised at any stage.
Civil procedure – Limitation – Revision to High Court – Item 21 Part III Law of Limitation Act (60 days) – Time-bar renders Court without jurisdiction. Jurisdiction – Time limitation is a jurisdictional issue and may be raised at any stage if material evidence is placed before the Court. Electronic filing – Online filing date counts as filing date for limitation computation. Procedural consequence – Time-bar disposes of application; merits need not be considered.
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4 October 2022 |
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Mortgage of a matrimonial home is void without spousal consent and the mortgagee’s statutory verification under section 114.
Land law – mortgage of matrimonial home – requirement of spousal consent under section 114 of the Land Act – mortgagee’s duty to verify marital status. Evidence – proof of identity/names – burden on mortgagor and mortgagee to produce documentary proof. Civil procedure – appellate review of tribunal findings – whether material misrecording of evidence warrants interference.
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3 October 2022 |
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Admissibility objections must be raised at trial; Ward Tribunals are not bound by formal evidence rules; claimant failed to prove land dimensions.
Land law – evidence – admissibility of unstamped instruments must be objected to at trial; Ward Tribunals not bound by formal rules of evidence/procedure (s.15 Ward Tribunals Act); burden to prove land size and boundaries on claimant; appellate review of evidence upheld.
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3 October 2022 |
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Applicant failed to account for over two-year delay and show diligence or proven illegality; extension denied with costs.
Extension of time — Law of Limitation Act s.14(1) and s.19(2) — Lyamuya factors — requirement to account for each day of delay — necessity of diligence by applicant/advocate — alleged illegality must be shown on record to justify extension.
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3 October 2022 |
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Applicant failed to show good cause or account for delay; extension to file leave to appeal dismissed with costs.
Appellate procedure – extension of time – requirement to show good cause; Limitation – computation – time for filing leave runs from receipt of judgment (s.19(2) Law of Limitation Act); Procedural irregularity – must appear on face of record or be proved; Counsel’s negligence or wrong procedural choice is not good cause for extension of time.
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3 October 2022 |
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High Court quashed DLHT judgment for material procedural defects and remitted the land dispute for retrial.
Land law — Pecuniary jurisdiction of DLHT — Sufficiency of description of suit land — Affidavits in lieu of oral evidence and cross‑examination — Admissibility and proof of survey plans as evidence of ownership — Assessors' opinions: requirement to record/read and give reasons for departure — High Court revisional powers to quash and remit for retrial.
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3 October 2022 |
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A filed Notice of Appeal in the Court of Appeal divests the High Court of jurisdiction until formally withdrawn.
Civil procedure – jurisdiction – Effect of filing a Notice of Appeal – Once a Notice of Appeal is filed the Court of Appeal is seized and the High Court is divested of jurisdiction except for specific permitted matters. Preliminary objections – Point of law – Jurisdictional objections can be decided as preliminary points without extensive evidence. Procedure – Withdrawal of a Notice of Appeal requires an order of the Court of Appeal; absence of such order means Notice remains on record.
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3 October 2022 |
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A revision filed 1,091 days after the tribunal decision was time-barred; application dismissed for lack of jurisdiction.
Civil procedure – Revision under the Civil Procedure Code and Land Disputes Courts Act – where no limitation is provided, Item 21 Part III of the Law of Limitation Act prescribes 60 days. Limitation – filing outside prescribed period deprives court of jurisdiction. Preliminary objection – time bar is fatal to revision applications.
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3 October 2022 |
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Leave to defend granted where affidavit disclosed triable issues on lease frustration and the court's jurisdiction.
Civil Procedure – Order XXXV summary procedure – leave to appear and defend – requirement of triable issue / prima facie case established by defendant's affidavit. Contract / Lease – frustration of lease – inhabitable premises and non‑payment of rent as a triable defence. Jurisdiction – challenge to court's jurisdiction to be determined in main suit. Discretion – leave may be granted unconditionally or subject to conditions (payment/security).
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3 October 2022 |
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Appellate court quashed tribunal proceedings for failure to properly involve, record and read assessors' opinions; retrial ordered.
Land law – District Land and Housing Tribunal – assessors’ participation – assessors must be present from commencement, give written opinions and have opinions read to parties before judgment (s.23(2)-(3) LDC Act; Reg.19(2) GN 174/2003). Civil procedure – irregularity in recording assessors’ involvement renders proceedings a nullity. Appellate practice – issue not raised in lower appellate court (quorum) cannot be entertained on second appeal.
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3 October 2022 |
| September 2022 |
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Leave to appeal granted where prima facie serious legal issues, including adverse possession and jurisdictional questions, arise.
Leave to appeal — standard for grant: issues of general importance, novel points of law, or prima facie arguable appeal; Doctrine of Adverse Possession and tribunal jurisdiction over registered land; limitation law and deceased estates; evaluation of evidence and assessors' role; parties bound by pleadings; procedural irregularity in reassignment of file.
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30 September 2022 |
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High Court lacked jurisdiction to grant injunction pending revision where the Court of Appeal was already seized of the same matter.
Civil procedure — Jurisdiction — Effect of pending appeal or application at the Court of Appeal — High Court divested of jurisdiction over same subject matter; Temporary injunction — interlocutory relief pending revision — improper where Court of Appeal is seized.
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30 September 2022 |
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Application to set aside taxation ruling dismissed as time-barred and for non-compliance with court orders.
Advocates Remuneration Order — time limit for review applications (21 days); Non-compliance with court orders — failure to file written submissions; Withdrawal at hearing — not permitted where court orders ignored; Failure to file submissions equates to failure to argue one's case; Court duty to enforce orders and preserve administration of justice.
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30 September 2022 |
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Court granted interim injunction to restrain sale/auction of disputed land pending trial due to triable issue and irreparable harm.
Land law – temporary injunction – requirements: triable issue, irreparable injury, balance of convenience. Power of Attorney – alleged fraud/misrepresentation in procuring and enhancing mortgage. Mortgage enforcement – risk of auction of immovable property causes irreparable injury. Interim relief – injunction granted pending determination of main suit.
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30 September 2022 |
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Reference upheld in part: extension validated but several cost items reduced for lack of proof, award substituted.
Costs — Taxation of bill of costs — Extension of time to file bill — Requirement to prove costs claimed (Evidence Act s.110) — Instruction fees and drafting/attendance allowances must be supported by evidence — Taxing Officer’s award reduced where amounts unproven.
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30 September 2022 |
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Leave to issue a third‑party notice denied where applicant’s contractual indemnity claim differs from main suit for ownership and possession.
Civil Procedure – Order 1 Rule 14 CPC – Third‑party notice – Leave to join third party for contribution/indemnity – Requirement that defendant’s claim share same subject matter and cause of action as main suit – Purpose to avoid multiplicity of suits.
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30 September 2022 |
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Plaintiff’s surveyed title and letter of offer proved ownership; defendants declared trespassers and ordered to vacate.
Land law – proof of ownership – survey plan and letter of offer/right of occupancy as strong evidence; Probate/letters of administration – limited unsurveyed grant insufficient to establish competing title; Burden of proof and weight of evidence in civil land disputes; Locus in quo inspection; Trespass and eviction; Claims for mesne profits and damages must be specifically proven.
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30 September 2022 |
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Preliminary objections on jurisdiction, bona fide purchaser protection, and limitation involved factual disputes and were overruled.
Civil procedure – preliminary objections – must be pure points of law; evidential/factual disputes inappropriate for preliminary disposal. Jurisdiction – pecuniary jurisdiction depends on evidence of current market value; plaint’s stated value insufficiently contested without proof. Land law – Land Registration Act s.51(1) – protection of bona fide purchaser requires factual proof and compliance with notice/challenge procedure. Limitation – 30‑day challenge period following Notice of Transfer requires proof of service and timing.
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30 September 2022 |
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Appeal dismissed as time-barred; appellant failed to show written request for judgment to exclude delay.
Limitation — Appeal from DLHT — computation of time under section 38 LDCA — exclusion of period obtaining copies under section 19(2) LLA — written request required to invoke exclusion — filing on 16/02/2022 held time-barred — section 14 LLA application for leave to file out of time.
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30 September 2022 |
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Whether a DLHT may proceed with one assessor after absence and whether ownership was proven.
Land Disputes Courts Act s.23 – mandatory composition with two assessors; s.23(3) permits continuation with one assessor if one becomes absent; burden of proof on party alleging ownership; admissibility/value of sale agreement and village council minutes as proof of lawful sale; appellate authority permitting trial continuation with remaining assessor.
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30 September 2022 |
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Pendency of a notice of appeal does not automatically stay execution; arrest requires evidential proof of exhausting other modes.
Execution — Effect of notice of appeal — Filing notice of appeal does not automatically stay execution; stay should be sought from Court of Appeal; Order XXI Rule 39(2) — Arrest and detention as last resort — Requirement to prove exhaustion of other modes of execution and satisfy statutory factors; Evidence — Need for affidavit or proof when alleging attempts to execute decree.
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30 September 2022 |
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A respondent lacked locus standi in a land suit absent proof of ownership or a registerable matrimonial interest.
Land law – locus standi in land suits; requirement to prove ownership or registerable interest; distinction between land disputes and matrimonial claims; misapplication of Law of Marriage Act by tribunals; appellate review – quashing decisions for lack of locus standi.
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30 September 2022 |
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Respondent lacked locus standi as family representative; failure to plead or attach authority rendered proceedings incompetent.
Land law – representative suit – locus standi – requirement to plead and attach instrument of authority – failure to plead/attach is fatal and renders proceedings incompetent – orders of lower tribunals quashed.
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30 September 2022 |