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1,082 judgments found.
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December 2023
Review application dismissed as time-barred for being filed outside the statutory limitation and without leave.
Civil procedure — Leave to file out of time
— necessary where limitation exceeded
— Preliminary objection on limitation can dispose of a review application without deciding other raised objections
Civil procedure — Review proceedings — Limitation — Item 3, Part III Schedule to the Law of Limitation Act
12 December 2023
Respondent's customary oral gift, corroborated by witnesses, established ownership; appellant's sale documents and adverse possession claim failed.
Civil procedure — Assessors — change in coram during pre-hearing dates not necessarily irregular — Successive chairpersons and death of an assessor do not vitiate proceedings absent prejudice
Land law
— adverse possession — requirements and interruption of possession
— proof of ownership — sale agreement and long occupation as proof of ownership — Assessment of title evidence
12 December 2023
Court granted temporary injunction to restrain auction of a mortgaged residential property pending dispute over loan facility agreement.
Civil procedure — interim relief — temporary injunction — Existence of prima facie triable issue, irreparable harm and balance of convenience
11 December 2023
Appellant’s failure to call the vendor and material neighbours to prove boundaries led to dismissal of land ownership claim.
Civil procedure
— ex‑parte proceedings — legal effect of ex parte order — Effect on party's right to participate in appeal
— locus in quo inspection — discretionary, required only in exceptional circumstances (conflicting evidence on location, boundaries or physical features) — When necessary to verify evidence adduced by the parties
Evidence — Failure to call material witnesses — adverse inference for failure to call material witnesses — Hemed Said v Mohamed Mbilu principle
Land law — ownership dispute — burden of proof on claimant to prove title — Section 110 Evidence Act
11 December 2023
An applicant must present specific, credible, corroborated reasons to set aside a dismissal for non-appearance.
Land law — Restoration of proceedings — Application to set aside dismissal for non-appearance — Particulars and corroboration of illness and delay — Affidavit credibility and documentary proof
8 December 2023
Failure to state value of mortgaged property deprived the court of pecuniary jurisdiction; suit struck out with costs.
Civil procedure — jurisdiction — Pecuniary jurisdiction
Civil procedure — Pleadings
— omission to state value may be deliberate evasion of court fees
— suit struck out with costs
Land law — Mortgage
8 December 2023
Tawarruq restructuring held to be permissible profit, mortgage auction lawful after default; applicant's challenge dismissed.
Contract law — loan restructuring — Validity of restructuring agreements — Effect of unchallenged execution and lack of proof of coercion
Islamic law — Murabaha/Tawarruq — Whether tawarruq constitutes riba (interest) — Permissibility and characterization under Shariah and AAOIFI standards
Land law — Mortgagee sale — Power of sale and auction of mortgaged property — Statutory demand and auction process lawful
8 December 2023
Revision struck out for improper joinder of parties and procedural noncompliance; amendment denied.
Land law — Revision — procedural irregularity — improper joinder of parties
8 December 2023
Extension of time based on alleged lost court records failed for lack of direct evidence and improper procedure.
Civil procedure
— Extension of time to appeal — Whether applicant showed good and sufficient cause to extend time to file a notice of appeal — Evidence, hearsay and requirement of affidavit from person with direct knowledge
— missing record — Reconstruction of lost court records and remedies (reconstruction, retrial or strike-off) — Filing a fresh notice is improper
8 December 2023
Failure to serve a reference within the mandatory seven-day period under Order 7(3) renders the application incompetent and is struck out with costs.
Legal profession — Advocates remuneration order 2015
— mandatory seven-day service requirement for references
— non-curable procedural defect
— striking out of incompetent application
7 December 2023
Plaintiffs failed to prove undervaluation or procedural flaws; mortgagee's auction sale upheld and suit dismissed with costs.
Civil procedure — Sale of mortgaged property in execution — Onus lies on claimant to prove irregularity or insufficiency of sale
Evidence — Valuation evidence — relevance of date of completion, market/inflation adjustments and necessity to prove disproportion to means
Land law — Mortgages — Sale of mortgaged property — Validity of mortgagee’s sale and compliance with statutory recovery procedures
7 December 2023
The plaintiff's land recovery and compensation claims were dismissed as time-barred for failure to plead limitation exemptions.
Civil procedure — Pleading requirement
Limitation law — Limitation of actions
— land recovery claims
— Tort/compensation claims
7 December 2023
Court held mortgage valid but nullified auction for failure to prove mandatory 14‑day notice; bank entitled to recover outstanding loan.
Land law — Guarantor liability — Exercise of powers
Land law — Mortgage — alleged forgery of mortgage instruments and spouse consent
Land law — Mortgagee sale — statutory default notice, 14‑day pre‑sale notice and public advertisement
— Mandatory 14‑day public notice under Auctioneers Act
— failure vitiates sale
6 December 2023
Applicant failed to show an arguable case to restrain implementation of a Court of Appeal order; injunction dismissed with costs.
Civil procedure — Interim injunction — requirements: prima facie case, irreparable harm, balance of convenience
— Execution of Court of Appeal decree
— effect on title revocation and resurvey
6 December 2023
A prior probate appellate judgment allocating property bars the applicant from relitigating ownership; appeal dismissed as res judicata.
Civil procedure
— Pleadings — amended defence admitting same subject matter and reliance on prior judgment as bar to suit
— res judicata and abuse of court process — prior probate and appellate judgment adjudicating ownership bars relitigation
Natural justice — Right to be heard — no violation where prior competent court finally determined the issue
Probate law — finality of probate appellate decision and administration of will — effect on subsequent ownership claims
6 December 2023
A single administrator may sue without co-administrator consent; occupant failed to prove ownership, appeal dismissed with costs.
Civil procedure — Evidence — burden to prove divorce, ownership or heirship to resist estate recovery
Civil procedure — Land — possession of estate property may be recovered by administrator
Civil procedure — Probate and administration
— joint administrators
— no consent required absent caveat or objection
5 December 2023
Appeal barred by res judicata; High Court quashed tribunal proceedings and dismissed the appeal with costs.
Civil procedure — Res judicata
— applicability to appeals
— jurisdictional objections may be raised at any stage
Civil procedure — revisional powers — quashing tribunal proceedings lacking jurisdiction
5 December 2023
A Mareva injunction cannot be granted pending an intended suit; applicant failed to show irreparable loss or balance of convenience.
Civil procedure
— Mareva injunction — Interim restraint pending statutory notice period
— Temporary injunction — Requirements: triable issue, irreparable injury, balance of convenience (Atilio v Mbowe)
Land law — Non-owner status — Non-registered owner’s inability to establish irreparable harm to justify preservation order
5 December 2023
Failure to give statutory 14‑day notice rendered the auction and eviction unlawful; the damages award was set aside.
Appellate practice — Appellate review of trial court's evaluation of evidence and credibility — Deference to trial magistrate’s findings on credibility and fact‑finding
Damages — General damages — Assessment and appellate interference where award is excessive and inadequately reasoned
Land law — Sale by auction — requirements of 14‑day and 60‑day notices, publication and openness — Sale nullity where notice deficient (Auctioneers Act s 12)
5 December 2023
Court ordered joinder of allocating authority and registrar as necessary parties; other preliminary objections dismissed.
Land law
— Cause of action — ownership pleaded and triable
— locus standi and incorporation certificate — factual matters requiring evidence
— Preliminary objections — non‑joinder of necessary parties (allocating authority and Registrar of Titles)
— Trustees Incorporation Act — no company‑style board‑resolution requirement to sue
5 December 2023
Applicant failed to show a prima facie case for injunctive relief against implementation of a Court of Appeal-ordered land resurvey; application dismissed.
Mareva/interim injunctions — Attilio v Mbowe test (prima facie case; irreparable loss; balance of convenience) — Execution of Court of Appeal order — Resurvey and subdivision of land — Revocation of title inevitable when implementing appellate order — Monetary compensation not irreparable harm — Validity and locus of counter-affidavit deponent.
5 December 2023
Failure by a successor tribunal chairperson to record reasons for taking over a partly heard matter renders subsequent proceedings null.
Land law — Land tribunals
— remittal for re‑hearing
— Succession of judicial officer
4 December 2023
Applicant failed to show sufficient cause for extension of time; delay and medical evidence were inadequate, application dismissed with costs.
Land law — extension of time to appeal
— good cause
— late or unendorsed requests for tribunal records and unsupported medical evidence do not justify extension
— unpleaded grounds inadmissible
4 December 2023
Failure to join land‑title authorities and absence of 90‑day government notice rendered the land suit incompetent and struck out.
Administrative law — Government proceedings act — Section 6(2) mandatory 90‑day notice and joinder of the Attorney General
Civil procedure — Verification of pleadings — curability of defective verification by amendment
Land law — joinder of necessary parties — Commissioner for Lands and Registrar of Titles as necessary parties where title/resurvey central to dispute
4 December 2023
One appeal dismissed as time-barred; trespass and rent claims filed after limitation were time‑barred and Tribunal proceedings quashed.
Civil procedure — Appeals — computation of time for lodging appeal — counting from judgment or decree and need to plead entitlement to extra time
Civil procedure — Limitation of actions — Land matters
— recovery of rent governed by 6-year limitation
— Trespass governed by 3-year tort limitation
1 December 2023
November 2023
30 November 2023
Applicant satisfied Atilio criteria; interlocutory injunction granted to restrain sale of disputed properties pending trial.
Civil procedure
— interlocutory injunction — Atilio
— mortgage/loan dispute — service of statutory 60‑day notice
— whether property formed part of security — matters for main suit
30 November 2023
Extension to appeal an ex parte land-tribunal decision dismissed as inappropriate; applicant must pursue the proper remedy.
Civil procedure
— extension of time — Illegality as good cause for enlargement of time — applicability when judgment was entered ex parte
— Proper remedy for ex parte decisions — set aside proceedings, not necessarily appeal
— Right to be heard — violation alleged where tribunal proceeded ex parte
30 November 2023
30 November 2023
Applicant failed to account for delay or show an apparent illegality; extension of time to seek certificate denied with costs.
Civil procedure
— Illegality as ground for extension — Illegality may be sufficient if obvious on face of record and properly pleaded — requirement that illegality be apparent on the face of the record (Lyamuya principle)
— Medical evidence — adequacy of proof of illness to justify delay — adequacy of medical letter, need for corroborating documents
— extension of time — duty to account for each day of delay
29 November 2023
The court struck out the suit for want of cause of action; refusal to sign transfer documents alone was insufficient.
Administrative law — Administrative actions — Alleged acts/omissions of Commissioner for Lands are distinct and may not constitute proper causes of action against a private defendant
Civil procedure — Pleadings
— cause of action
— mere assertions insufficient
Civil procedure — preliminary objection — Where a plaint discloses no cause of action, the suit may be struck out with costs
Land law — Transfer documents — Refusal to sign transfer papers alone does not constitute a cause of action without pleading defendant's status or legal obligation
29 November 2023
A co-owner cannot validly sell undivided land without co-owners' consent; failure to file defence admits facts.
Civil procedure
— Default judgment — Defendant's failure to file written statement of defence — Failure to file defence may be treated as admission (Order VIII r.14 CPC)
— pleadings bind parties and court — Court must decide on issues pleaded and must not introduce its own unpleaded facts
Land law — Sale of co-owned land — Sale by one co-owner of undivided land without consent — Sale void ab initio
29 November 2023
Preliminary objections raising the Administrator General’s joinder were factual, not points of law, and thus overruled.
Civil procedure — Preliminary objections — point of law versus factual dispute — Mukisa Biscuits test applies.* Administration of estates — locus standi of co-administrator
29 November 2023
The plaintiffs proved breach of lease and recoverable rent arrears; some claims were time-barred and unauthorized renovations not set off.
Civil procedure — Pleadings
— court may not award unpleaded amounts
— evidence confined to pleadings
Land law — Lease — implied covenant to keep dwelling fit for human habitation
Limitation law — Limitation — Law of Limitation Act item 13 Part I Schedule — six-year bar to recovery of rent arrears
29 November 2023
Court reviewed and corrected a manifest error where reasons found an appeal meritorious but the order dismissed it.
Civil procedure
— Judgment — Clerical/manifest error — When findings support allowing an appeal but the concluding paragraph dismisses it — power to review and correct
— Review — mistake or error apparent on the face of the record
29 November 2023
Appellant cannot challenge unobjected documentary or electronic evidence on appeal; admitted leases proved liability for rent arrears.
Evidence
— Admissibility of documents — Objections not raised at trial cannot be raised on appeal
— Electronic evidence — admissibility depends on authenticity, integrity, reliability and originator identification (s18(2))
Land law — Lease — Tenant liability and rent arrears
28 November 2023
Appellate court rejects after‑thought evidentiary objections and upholds rent award; ownership finding unnecessarily overstated.
Evidence
— appellate admissibility objections — objections to documents (lack of signature/common seal) raised first on appeal are afterthoughts and not entertained
— Electronic evidence — admissible
— Lease agreements — tenant’s obligation to pay landlord shown by executed leases even if third‑party ownership is alleged
— Procedural scope — tribunal’s decision should not overreach issues framed, ownership finding was an overstretch
— Proof of debt — reconciliation document admitted at trial supports rent arrears claim
28 November 2023
Court grants extension of time to file appeal, excusing withdrawal without leave due to applicant's unrepresented status.
Civil procedure
— discretionary relief — application of Lyamuya factors (accounting for delay, inordinate delay, diligence, other sufficient reasons)
— Overriding objective — protection of lay litigant who withdrew appeal in person
— Technical/bonafide delay — reasonable time to prepare pleadings
— withdrawal of suit/appeal without leave — effect on right to refile
Land law — Extension of time
28 November 2023
Revision application dismissed as time‑barred for failure to meet the Law of Limitation Act's 60‑day requirement.
Land law — Revision of District Land and Housing Tribunal decisions — Limitation: Item 21, Part III Schedule to Law of Limitation Act prescribes 60 days where statute is silent — Computation of time and exclusion for obtaining requisite copy — Time‑barred applications dismissed per
28 November 2023
Court granted extension to file notice and leave to appeal for technical delay; preliminary objections overruled.
Civil procedure — Extension of time to appeal
— Leave to file appeal out of time
— computation of appeal period — Technical delay (withdrawal of appeal; estate administration)
Civil procedure — Preliminary objection on point of law — Omnibus objection and wrong citation — Clerical/topographical errors not fatal
27 November 2023
Leave for a representative suit granted only where members proved consent and sufficient documentary proof of interest.
Civil procedure
— Evidence — burden to exhibit documentary proof (minutes, filing/exchequer receipts) — Discrepancies in numbers and names may defeat representative standing
— Representative suits — Requirements: leave, common interest/willingness, and consent — Proof by minutes and supporting documents
27 November 2023
Applicant failed to show sufficient cause to set aside dismissal for non-appearance; application dismissed with costs.
Civil procedure
— Power of attorney — Presence of donor not necessary where litigation instituted by attorney
— Setting aside dismissal for non-appearance — Sufficient cause required — Order IX Rule 6 Civil Procedure Code
Legal profession — Advocates’ duty — Counsel’s duty to notify court or arrange brief — Failure may justify dismissal
27 November 2023
A court will not disturb a Taxing Master's reasonable exercise of discretion on instruction and attendance fees absent manifest injustice.
Civil procedure — Taxation of costs — instruction fees — whether awarded instruction fees were excessive and subject to reduction on reference under Advocates Remuneration Order, 2015
Legal profession — Advocates remuneration order 2015 — Instruction fee and attendance costs — Discretion of Taxing Officer and standards for interference
27 November 2023
Court upheld Taxing Master's awards, finding instruction and attendance costs reasonable and dismissing the reference.
Civil procedure — Taxation of costs — discretion of Taxing Officer
— Advocates Remuneration
— attendance costs
— instruction fees
— interference only if manifestly excessive, inadequate or exercised on wrong principle
27 November 2023
Appellant failed to prove payment of the balance; contract was voidable, resale valid, and appeal dismissed with costs.
Evidence — Failure to call material witnesses — adverse inference for failure to call material witnesses — Civil standard (balance of probabilities)
Land disputes — District Land and Housing Tribunal — Procedural irregularities vitiate tribunal proceedings — Regulation 12 GN.174/2003: non‑compliance not fatal absent miscarriage of justice
Land law — Sale of land — Breach of contract (non‑payment) — Effect on transfer and seller's right to resell
24 November 2023
Court dismissed the plaintiff's suit for want of prosecution after failure to proceed following a last adjournment.
Civil procedure
— Costs — Judicial discretion to award or withhold costs — Discretion to withhold costs where suit dismissed for want of prosecution given parties' nature
— Dismissal for want of prosecution — failure by applicant to proceed when matter fixed — Inherent power to terminate proceedings
— dismissal for non-attendance — Absence without summons or cause list — Adverse inference and compliance with court directions
24 November 2023
Preliminary objections on res judicata, non-joinder, cause of action and locus standi were overruled as factual matters requiring evidence.
Administrative law — Locus standi — Capacity to sue (personal vs. representative) may involve customary inheritance and facts beyond pleadings
Civil procedure
— Non-joinder — Whether a local official is a necessary party depends on factual proof
— Preliminary objections — Point of law versus questions of fact — Objections involving disputed facts and party identity are unsuitable for disposal at preliminary stage
— Res judicata/abuse of process — Prior proceedings
24 November 2023
Applicant failed to satisfy the three Attilio conditions for a temporary injunction to restrain sale of mortgaged property.
Civil procedure — Interim injunction — Interim injunction tests — Order XXXVII R.1 — 2 & s.68(e) CPC
24 November 2023
Filing a notice of appeal does not automatically stay taxation; excessive instruction fees reduced on review.
Civil procedure
— Advocates Remuneration Order — timing and taxation of bills
— instruction fees — assessment and reduction where little or no work was performed
— Notice of non-contendence — weight in taxation
— Taxation of costs — Notice of appeal does not automatically stay taxation
24 November 2023
A counterclaim is struck out where a non-party was impleaded as plaintiff and no bona fide mistake is shown.
Civil procedure
— Amendment of parties — Substitution/removal for wrong plaintiff — Bona fide mistake requirement — Order I r.10(2)
— Counterclaim — Requirement that counterclaim disclose a cause of action against the defendant and be maintainable as a separate action — Order VIII rr.9 — 10
24 November 2023