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Citation
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Judgment date
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| December 2023 |
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An application supported by a joint affidavit failing to distinguish oath and affirmation is incompetent and struck out.
Procedure — Affidavit formalities — Oaths and Statutory Declarations Act and Oaths and Affirmation Rules — Requirement that Christians swear and Muslims affirm — Joint affidavits — Incurably defective jurat renders supporting affidavit and application incompetent.
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28 December 2023 |
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Court dismissed language technicalities but struck out time‑barred claims and upheld counter‑claim’s cause of action.
Civil procedure – Preliminary objections – must raise pure point of law; Language compliance – Rule 4(1)(a)(b) GN No.66/2022; Overriding/oxygen principle – technical noncompliance not fatal absent prejudice; Limitation – cause of action accrual and six‑year limitation (Item 24, Part I, Law of Limitation Act); Counter‑claim – must disclose cause of action (Order VII Rule 1).
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22 December 2023 |
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Non-joinder of land registry officials renders a land-ownership suit incompetent; court struck it out.
Land law – joinder of necessary parties; Commissioner for Lands and Registrar of Titles; Certificate of Title and presidential revocation; non-joinder renders suit incompetent; striking out proceedings.
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20 December 2023 |
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Failure to annex a board resolution may be cured by filing it in a reply; co-plaintiff's suit sustains proceedings, so objection overruled.
Companies Act s.147(1) — corporate authorisation to sue — board resolution requirement; scope of Simba Papers Converters Ltd — resolution required for internal disputes vs suits against third parties; pleadings — annexure of resolution in reply (Order VIII r.13 CPC) constitutes part of pleadings; preliminary objection and partial incompetence when co-plaintiff is natural person.
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20 December 2023 |
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Court set aside unproven damages, found welding the respondent's premises unjustified and ordered it unlocked.
Land law – lease and renovation agreement – proof of agreed rent – burden under s.110(1) Evidence Act; Self-help evictions – welding/locking premises unlawful; Damages – specific damages require strict proof and general damages require supporting evidence; Duty of tribunal to give adequate reasons under Land Disputes Courts Regulations.
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20 December 2023 |
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Plaintiffs' rent claim dismissed: lease inadequately proved and evidence insufficient despite defendant's non‑appearance.
Land — Lease agreements — Proof of existence and terms — Importance of execution details and consistent premises description; conflicting descriptions raise reasonable doubt. Civil procedure — Burden of proof — Plaintiff must prove claim on balance of probabilities even if defendant absent; reliance on Hemed Said v Mohamed Mbilu and Evidence Act (ss.110,111,112,115). Remedies — Claim dismissed where plaintiffs fail to prove lease, arrears or anticipated loss.
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20 December 2023 |
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Extension granted where substituted publication service was unproven and applicant promptly acted after learning of ex-parte judgment.
Extension of time; application to set aside ex-parte judgment; substituted service by publication; proof of service required; registered-mail notice; accounting for delay; grant of limited extension; no costs.
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19 December 2023 |
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Extension to lodge notice of appeal granted; application for leave struck out after statute removed leave requirement.
Civil procedure – extension of time to lodge notice of appeal – technical delay and cumulative accounting for delay. Appellate procedure – effect of Legal Sector Laws (Miscellaneous Amendments) Act No. 11 of 2023 on requirement for leave to appeal in civil matters. Overtaken-by-event doctrine – striking out applications rendered unnecessary by legislative change.
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19 December 2023 |
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The applicant is entitled to refund of payments where the respondent bank accepted funds yet proceeded to auction the mortgaged property.
Land law; mortgage/security; third‑party payments; implied agreement between bank and third party; auction of mortgaged property; bona fide purchaser; restitution of payments; interest on awarded sum.
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19 December 2023 |
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Application for extension to obtain leave to appeal struck out as amendment removed the requirement for leave in civil appeals.
Appellate procedure – The Legal Sector Laws (Miscellaneous Amendments) Act No. 11 of 2023 – amendment of Appellate Jurisdiction Act removing requirement for leave to appeal in civil proceedings; effect of legislative change as rendering applications for leave or extensions to seek leave overtaken by event; reliance on Court of Appeal authorities applying the amendment.
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19 December 2023 |
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An appeal against an interlocutory refusal to recuse is incompetent and was struck out with costs.
Appellate Jurisdiction Act s.5(2)(d) – appeals from interlocutory or preliminary decisions; Land Disputes Courts Regulations (G.N.174/2003) r.22 – prohibition on appeals from interlocutory rulings; competence of appeal; withdrawal of appeal after preliminary objection; costs for dilatory conduct (Social Action Fund precedent).
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19 December 2023 |
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Technical delay from prosecuting a related appeal can justify an extension of time to file a notice of appeal.
Civil procedure – extension of time – technical delay while prosecuting related appeal – requirement to account for delay – affidavits and interlocutory follow‑up as justification – 14 days granted to file notice of appeal.
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19 December 2023 |
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Amendment removing leave requirement makes an extension application to seek leave to appeal overtaken by events and thus struck out.
Appellate procedure – requirement of leave to appeal in civil proceedings – Legal Sector Laws (Miscellaneous Amendments) Act No.11 of 2023 amending Appellate Jurisdiction Act section 5 – leave no longer required in ordinary civil appeals; application for extension of time to seek leave overtaken by events.
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19 December 2023 |
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19 December 2023 |
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A late non‑joinder objection against the Registrar of Titles, not pleaded as required, is misconceived and struck out.
Civil procedure – preliminary objections – Order VIII r.2 – matters showing suit not maintainable must be pleaded; late non‑joinder objections may take opposite party by surprise. Land law – transfer of registered land – Registrar of Titles’ role under s.51(1) Land Act – non‑joinder vs requirement to join public officer and notice under Government Proceedings Act s.6. Pleadings – factual averment that Registrar effects transfers does not equate to formal notice to raise non‑joinder as point of law.
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19 December 2023 |
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A company’s suit filed without a board resolution or express board authorization is incompetent and may be struck out.
Companies Act (Cap 212) s.147 – corporate acts requiring board resolution – requirement for board resolution or express authorization to institute proceedings. Civil procedure – preliminary objection – incompetence of suit instituted without corporate mandate – striking out. Precedent – Simba Papers (Court of Appeal) and High Court authorities applied.
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19 December 2023 |
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Failure to plead and attach letters of administration renders representative applicants' proceedings incompetent and subject to being struck out.
Representative capacity – requirement to plead and attach letters of administration or probate – locus standi – failure to plead/attach is fatal and renders proceedings incompetent – preliminary objection on capacity.
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19 December 2023 |
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Short extension granted to file revision where alleged illegality and res judicata raise substantive issues.
Civil procedure – extension of time – whether alleged illegality (non‑joinder, res judicata) justifies extension; substantive factual issues deferred to revision proceedings.* Land law – prior litigation and alleged res judicata versus subsequent trespass claim – factual provenance of title and timing of alleged trespass relevant to cause of action.
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19 December 2023 |
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Second appellant proved ownership by village allocation; trial Tribunal improperly relied on assessors’ extra-record facts and untendered documents.
Land law – proof of title and inheritance – necessity of proving chain of title and administrator authority; Village allocation as prima facie title; Assessors’ opinions must not introduce extraneous facts; Documents attached to pleadings are not evidence unless produced and admitted; Locus visit and border agreement mitigate slight specification discrepancies.
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19 December 2023 |
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Appeal dismissed: appellant failed to prove tenancy payments, unlawful eviction, or loss/value of claimed equipment.
Evidence Act (s.110, s.112) – burden of proof in civil claims; balance of probabilities standard. Tenancy disputes – proof of lease and rent payments; weight of oral testimony vs documentary evidence. Eviction law – whether eviction was forceful or without notice; role of local mediators/associations and witnesses. Damages – requirement to prove loss, identity and value of items claimed.
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19 December 2023 |
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Borrower must repay loan recalculated at agreed 21% interest; unlawful immediate deductions disallowed and default notice held valid.
Banking law – loan restructuring and moratorium – unlawful deductions during agreed grace period; Contract law – agreed interest rate binding (21% v. charged 22%) – repayment to be recalculated; Mortgage law – statutory default notice and power to sell (sections 126,127) – valid where mortgagor defaults; Equitable relief – clean hands doctrine and dismissal of injunctions and declaratory reliefs.
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18 December 2023 |
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Applicants failed to prove interest in the adjudicated land; revision application dismissed for lack of entitlement to be heard.
Land — Revision jurisdiction under section 43 LDC Act — requirement of an error material to merits; Locus standi/interest in land — applicant must show interest in the exact parcel adjudicated; Evidence — allocation letters and title copies must correspond to the subject land; Absence from prior proceedings — not automatically an injustice if interest not established.
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18 December 2023 |
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Application to set aside dismissal of counterclaim dismissed for failure to show good cause for non-appearance.
Civil Procedure – restoration of dismissed suit/counterclaim – Order IX Rule 3 CPC – requirement to show good cause for non-appearance. Procedural irregularity – curable slip (wrong case number) and incorrect citation of statute – section 3A (oxygen principle) prevents defeat on technicality where court has jurisdiction. Failure to prosecute – dismissal for want of prosecution justified where parties/advocate knowingly absent.
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18 December 2023 |
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Leave to appeal granted on three arguable legal points; joinder objection premature; appeal to be filed within time.
Civil procedure — Leave to appeal — Discretionary, not automatic — Granted where grounds raise arguable or prima facie issues, novel point of law, or general importance. Appellate practice — Test from British Broadcasting Corporation v Ng'maryo applied. Non-joinder of original parties — Objection premature and can be addressed on appeal.
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18 December 2023 |
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Consent decree quashed where party with matrimonial interest was not joined and denied the right to be heard.
Land law – Joinder and right to be heard – Consent decree – Matrimonial property – Proceedings quashed where party with interest was not joined; possible collusion noted but not decided.
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15 December 2023 |
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Leave to appeal denied where alleged illegality and first-buyer claim lacked arguable legal points and material evidence.
Civil procedure – leave to appeal to Court of Appeal – discretionary; requires arguable or novel points of law or matters of general importance. Jurisdiction – point of jurisdiction/illegality may be raised at appellate stages but requires material evidence placed before the court. Land law – priority/first-buyer disputes are factual determinations and do not per se constitute novel legal issues for leave to appeal.
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15 December 2023 |
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The applicant failed to prove title; the respondent established a superior chain of title and prevailed on the counterclaim.
Land law – title dispute; validity of alleged sale where vendor was deceased; sufficiency and credibility of documentary evidence (affidavit, bank slips, sale agreement); chain of title – original offers and transfers; effect of failure to rebut pleaded fact (vendor's death) on proof of title.
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15 December 2023 |
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An appeal is incompetent and will be struck out if the parties named in the appeal differ from those at trial.
Civil procedure – Appeal competency – Parties in Memorandum of Appeal must be identical to parties at trial; omission or change of parties is fatal and renders appeal incompetent.
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15 December 2023 |
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Extension of time granted where delay resulted from prosecuting an appeal later struck out as incompetent (technical delay).
Appellate procedure – extension of time – technical delay where original appeal prosecuted but later struck out as incompetent – recognised ground for extension. Requirement of proof of service – lack of proof may render an appeal incompetent. Procedural irregularity – successor judge taking over without reasons invoked but court emphasised diligence and promptness in applying for extension. Extension of time – good cause established by prosecuting an incompetent appeal and immediate application thereafter.
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15 December 2023 |
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Applicant failed to prove illness or substantiate advocate’s conduct, so extension of time to restore dismissed suit was denied.
Land practice — extension of time under section 14(1) Law of Limitation Act — good cause required — illness must be evidenced and shown to have caused delay — allegations about third parties require their affidavits (no hearsay) — applicant must account for each day of delay.
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15 December 2023 |
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Non‑party status does not automatically constitute an apparent illegality warranting extension of time to file revision.
Civil procedure – Extension of time – Application under section 14(1) Law of Limitation Act – Applicant must account for each day of delay; Lyamuya factors apply. Illegality as ground for extension – must be apparent on the face of the impugned decision; mere non‑joinder is not automatically sufficient. Failure to attach impugned decision permits inference that no clear illegality exists.
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14 December 2023 |
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Applicant failed to show sufficient cause for extension of time; application dismissed without costs.
Extension of time – Law of Limitation Act s.14(1) – requirement to show sufficient cause and account for each day of delay (Lyamuya/Bushiri) – minority not proved and minors may sue by next friend – technical delay must arise from applicant's own defective proceedings – illegality must be apparent on face of record and supported by evidence.
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14 December 2023 |
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Appellate court dismisses challenge to tribunal’s ownership finding, upholding evidence assessment and procedural rulings.
Land law – ownership dispute – evaluation of competing sale agreements; Evidence – burden of proof and adverse inference for failure to call material witnesses; Admissibility – unstamped instrument raised late on appeal; Procedure – locus in quo inspection discretionary; Assessors – written opinions read and chairperson may depart with reasons.
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14 December 2023 |
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14 December 2023 |
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Mesne‑profit claim held not time‑barred; misjoinder via attorney requires evidence and is curable, objections overruled.
Limitation law – distinction between claims for rent arrears and mesne profits; applicable limitation periods. Continuing wrong – section 7 Law of Limitation Act; fresh period of limitation where breach continues. Civil procedure – preliminary objections must raise pure points of law ascertainable from pleadings. Representative capacity/misjoinder – necessity of proof of authority; misjoinder curable under Order I rules (amendment).
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14 December 2023 |
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Appellant found lawful owner; tribunal erred in finding transfer to sister; sale to third party invalid; no costs.
Land law — ownership dispute — competing sale agreements and local government acknowledgements; Evidence — evaluation of documentary inconsistencies (dates, descriptions) and oral testimony; Transfer of title — signature as witness does not prove transfer; Sale to third party — void where vendor lacks title; Costs — refused to avoid escalating intra-family dispute.
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14 December 2023 |
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Leave to appeal refused where applicants failed to show legal points worthy of Court of Appeal consideration.
Leave to appeal – discretionary grant – requirement to show points of law worth Court of Appeal consideration; restoration of dismissed suits – sufficient cause for non-appearance; procedural proof (medical chits, resignation letters); final pre-trial conference and dismissal for non-attendance.
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13 December 2023 |
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Applicant granted leave to appeal on prima facie arguable issues about ownership evidence and admissibility of an unregistered sale agreement.
Civil procedure – Leave to appeal – Discretionary grant – Criteria: legal point worthy of Court of Appeal consideration, novelty/public importance, prima facie arguable grounds, serious misdirection. Evidence – Ownership proof – Whether a residential license alone can prove ownership. Evidence – Admissibility – Requirement of registration and stamp duty for sale agreements of un‑surveyed plots.
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13 December 2023 |
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Applicants failed to show sufficient cause to set aside dismissal for non-appearance where advocates had conflicting Court of Appeal engagements.
Land procedure – Restoration of suit dismissed for non-appearance – Order IX Rule 6(1) CPC – Sufficient cause; party's duty to follow up case; advocates’ conflicting engagements; notification/adjournment obligations; balance between expeditiousness and justice.
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13 December 2023 |
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Compensation claim for land acquisition held time-barred and dismissed with costs under the Limitation Act.
Limitation of actions – Compensation for land acquisition – accrual of cause of action – one-year limitation under Item 1 Part I of the Law of Limitation Act – negotiations/correspondence do not suspend limitation – Section 3(1) dismissal.
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13 December 2023 |
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Plaintiff found owner but court recognised a 553 sqm right‑of‑way, ordering compensation assessed and paid by the dominant land owner.
Land law – ownership v public road – absence of pre‑existing road in sale agreements and survey; Easement/right‑of‑way – recognition of access (servitude) over owner’s land used by neighbours; Compensation – servient owner entitled to just compensation assessed by Ministry valuer; Requirement that compensation be paid by dominant/benefitting land owner; Importance of survey evidence in boundary disputes.
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13 December 2023 |
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Plaintiff's sale agreement established ownership; defendant's alleged gift letter failed to establish competing title.
Land law – proof of title – sale agreement description governs ownership; Gift deeds – formal requirements (donor capacity, present intention, delivery, acceptance) – informal letter insufficient; Non-joinder – discretionary and not fatal where reliefs executable; Injunction and costs awarded to successful purchaser.
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13 December 2023 |
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Court set aside ex parte land-judgment due to applicants’ good cause, arguable defence and respondent’s concession.
Civil procedure – setting aside ex parte judgment under s.95 and Order IX r.13(1); extension of time – good cause and arguable defence; binding effect of earlier interlocutory ruling; concession by respondent.
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12 December 2023 |
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Court set aside dismissal and restored the counterclaim where the applicant's counsel's sudden illness constituted sufficient cause.
Civil Procedure – Order IX r.6 – Setting aside dismissal for non-appearance – "Good cause" – medical incapacity of counsel as sufficient cause – diligence in follow-up and corroborative affidavit – restoration of suit.
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12 December 2023 |
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Withdrawal of a suit without leave bars refiling; any party to the fresh suit may object.
Order XXIII r.1(3) CPC — withdrawal without leave bars refiling; locus to object — any party to the fresh suit may raise preliminary objection; subject matter test vs cause of action; applicability of CPC to Land Tribunal via s.51(2) Cap 216; GN 174 reg.17(1) silent on effect of withdrawal.
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12 December 2023 |
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Leave to appeal granted where affidavit disclosed arguable points of law, including pecuniary jurisdiction and late rejoinder issues.
Land law Leave to appeal Test for grant of leave: arguable point of law, public importance or serious misdirection Pecuniary jurisdiction dispute Procedural compliance (late rejoinder).
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12 December 2023 |
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Applicant failed to show sufficient cause for extension of time; delay unexplained and medical evidence inadequate.
Extension of time – requirement to show sufficient cause – must account for all days of delay; illness evidence must be pleaded and supported in affidavit; inability to contact advocate by phone not a sufficient excuse.
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12 December 2023 |
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Dismissal for want of prosecution upheld where applicant refused to proceed and sought an impermissible rejoinder.
Land procedure — Regulation 8(1) LD Courts Regulations — no further pleadings once written statement of defence filed and hearing fixed; failure to prosecute — dismissal for want of prosecution; recusal and procedural conduct of parties.
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12 December 2023 |
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Bank may enforce security on default but cannot sell mortgaged or non-mortgaged property without statutory notice or court authority.
Land law – mortgage and power of sale – requirement of sixty-days notice under section 127 before sale of mortgaged property. Contract/loan facilities – default and consequences – admission of indebtedness and entitlement to enforce security. Property law – effect of surrendering title for due diligence where no valid mortgage exists – wrongful retention and duty to release title deed. Interim/permanent injunctions – restraint on sale pending compliance with statutory procedure.
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12 December 2023 |
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Applicants residing on disputed land must be joined as defendants where eviction orders would affect their interests.
Civil Procedure — Order 1 Rule 3 CPC — Joinder of parties as necessary or proper parties Joinder criteria — right to relief against non‑party; inability to pass effective decree without them Dominus litis — plaintiff’s choice of parties is not absolute; court discretion to add necessary parties Land law — eviction/vacant possession/demolition orders affecting third‑party occupants and compensation claims Avoidance of multiplicity of suits and ensuring executable decrees
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12 December 2023 |