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Citation
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Judgment date
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| July 2024 |
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Balance of probabilities governs civil fraud and ownership disputes; failure to prove signatures or call material witnesses defeats a mortgage claim.
Land law – ownership proof; burden of proof under Evidence Act s.110; civil fraud standard – balance of probabilities; proof of signature – handwriting expert or material witness; adverse inference for failure to call material witnesses; mortgage nullity where authenticity not established.
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31 July 2024 |
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Court granted interim injunction maintaining status quo to prevent eviction pending arbitration, finding prima facie case and irreparable harm.
Interim injunctions (Mareva injunction) — requirements: prima facie case, irreparable harm, balance of convenience; maintenance of status quo pending arbitration and statutory notice; lease disputes and interim relief to prevent eviction.
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31 July 2024 |
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An advocate may depone only on facts within personal knowledge; an affidavit based on clients' information is hearsay and fatal.
Civil Procedure — Affidavit — Order XIX Rule 3(1) — Interlocutory applications — Advocate as deponent — Personal knowledge required — Hearsay inadmissible — Defective affidavit — Application struck out.
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31 July 2024 |
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Whether the plaint discloses a cause of action against the defendant when correspondence implicates a different corporate entity.
Civil procedure – Order VII – rejection of plaint for failure to disclose cause of action – misjoinder/wrong party – correspondence showing ownership by a different corporate entity. Leave to amend – court may permit amendment to implead necessary parties rather than reject plaint. Preliminary objection technically overruled; no order as to costs.
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31 July 2024 |
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Statutory default notices lacking date of receipt rendered the defendants' auction of mortgaged property unlawful.
Land law — Section 127 Land Act — statutory sixty‑day default notice — requirement to indicate date of receipt/service — omission renders notice void; Allegation of forgery in civil proceedings — higher standard of proof required; Auction irregularities — short advertisement period not necessarily fatal but defective statutory default notice vitiates sale; Burden of proof for valuation and damages — claimant must produce evidence/valuation to substantiate claims.
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31 July 2024 |
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Delay in obtaining a copy of a ruling justified extension to file a reference where the applicant acted diligently.
Advocates Remuneration Order, Order 8(1)&(2) – extension of time to file a reference; sufficient cause – accounting for delay, diligence, inordinate delay; late supply of copies as ground for extension; Lyamuya factors applied.
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31 July 2024 |
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A private loan secured by title is enforceable; it does not become unlicensed banking absent public fund-taking or commercial activity.
Contract law – validity of private loan agreements (s.10 Law of Contract Act Cap 345) – Business Licensing Act (Cap 208) and Banking and Financial Institutions Act (Cap 342) – distinction between private lending and licensed banking/public fund-taking – enforceability of agreed interest – remedy of mortgage enforcement.
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31 July 2024 |
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31 July 2024 |
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31 July 2024 |
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Failure to join the Commissioner for Lands as a necessary party rendered the plaintiff's suit incompetent and it was struck out with costs.
Civil procedure – Preliminary objections – Non-joinder of necessary party – Allegations against Commissioner for Lands for loss of transfer documents may create independent cause of action requiring joinder. Civil procedure – Preliminary objections – Determination on pleadings – Mukisa principle applied to ascertain points of law from pleadings. Civil procedure – Failure to join necessary party – Renders suit incompetent; suit struck out. Land law – Transfer documents – Misplacement at Registrar/Commissioner’s office and its procedural consequences.
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31 July 2024 |
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31 July 2024 |
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Temporary injunction granted to restrain auction of the applicant's property pending resolution of triable disputes over loan enforcement.
Civil procedure — Temporary injunction — Requirements: prima facie/triable issues, irreparable injury, balance of convenience; Application under s.68(1)(e) & Order XXXVII r.1(a) CPC; dispute over loan amount, time-barred claim, and validity of default notice; preservation of property pending adjudication.
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31 July 2024 |
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Failure to join the Director of Survey and Mapping as a necessary party rendered the proceedings incompetent and quashed the judgment.
Land law; non-joinder of necessary party — Director of Survey and Mapping; nullification of registered cadastral plan; pleadings bind parties and court; incompetence for failure to join indispensable party (Land Survey Act Cap 324).
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31 July 2024 |
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Appellant failed to prove title or chain of transfer; appeal dismissed but entitled to recover purchase price from vendor.
Land law – proof of title and chain of title – burden on purchaser to show vendor had a better title; Description/measurements of land – sufficiency and clarity; Verification of pleadings – counsel-signed pleadings raised first on appeal – afterthought; Relief – claim for return of purchase price against missing vendor.
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31 July 2024 |
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31 July 2024 |
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Court granted leave for a representative suit after finding numerous claimants with common interest and valid authorisation.
Representative suits – Order 1 r.8(1) CPC – Leave to sue on behalf of numerous persons; requirements: existence of numerous persons, common interest, and valid authorisation – Evidence: minutes and signed list – Purpose of leave: prevent fictitious or unmandated plaintiffs – Directions: filing timeframe and newspaper notice.
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31 July 2024 |
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A land suit lacking an adequate property description is incurably defective and may be nullified with the decision quashed.
Land law – Requirement for adequate description of suit property – Order VII Rule 3 CPC – Suit land must be identifiable, title number where applicable. Civil procedure – Competency of suit – Vague or contradictory property description renders proceedings null and unenforceable. Land Disputes Courts Act, s.43 – Revisionary power to nullify and quash tribunal proceedings where subject matter is not properly described.
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31 July 2024 |
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31 July 2024 |
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The Court nullified the tribunal’s proceedings for an insufficient property description and for proceeding without assessors or recorded reasons.
Land law – immovable property pleadings – unsurveyed land requires specific description/boundaries (Order VII r.3) – procedural law – requirement to have assessors and to record reasons for proceeding without them – absence of assessors’ opinions vitiates judgment – revisional powers under s.43 to nullify and quash tribunal proceedings.
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31 July 2024 |
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An order granting leave to apply to set aside an ex parte judgment is interlocutory and not appealable.
Land procedure — interlocutory orders — whether grant of leave to apply to set aside ex parte judgment is appealable; Regulation 22 GN.174/2003; test whether order finally disposes of parties' rights.
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31 July 2024 |
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Execution orders of the District Land and Housing Tribunal are not appealable; remedy is by revision.
Land law – Appeals – Execution orders of District Land and Housing Tribunal – Whether appealable to the High Court – Interpretation of Regulation 24 GN.174/2003 and sections 38, 41 and 51(2) of the Land Disputes Courts Act; application of Civil Procedure Code (Order XL, s.74); proper remedy is revision.
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31 July 2024 |
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Review allowed: late amended petition rendered appeal incompetent and was struck out; party names corrected, no costs.
Judicial review – error apparent on the face of the record – correction of a court's own judgment. Civil procedure – competence of appeal – effect of filing an amended petition out of time – strike out as remedy for incompetence. Civil procedure – dismissal for want of prosecution versus striking out. Overriding objective/"oxygen" principle – correction of typographical or naming errors in judgments. Parties – substitution or alteration of party names without leave and potential prejudice to absent parties.
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31 July 2024 |
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Whether a contractual breach over immovable property constitutes a land dispute and whether the land tribunal had jurisdiction.
Land jurisdiction — Pleadings and reliefs determine jurisdiction; contractual disputes concerning sale of immovable property do not necessarily amount to land disputes — Tribunal entertaining matter outside jurisdiction renders proceedings null and void — High Court’s revisional powers under section 43 LDCA to quash and set aside proceedings.
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31 July 2024 |
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An unsurveyed land claim lacking sufficient description is incompetent and the tribunal's proceedings are nullified.
Land law – description of immovable property – Order VII Rule 3 CPC – requirement to state size/title number and boundaries for identification and execution of orders. Competency of proceedings – insufficient description renders proceedings null and void. Revisionary powers – section 43 Land Disputes Courts Act – nullification and quashing of tribunal proceedings.
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31 July 2024 |
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31 July 2024 |
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Appeal struck out because the memorandum and submissions were confusing, argumentative and legally incompetent.
Appeal procedure — competency of memorandum of appeal — grounds must be clear and not argumentative; pleadings and written submissions must not introduce new, confusing facts — defective/incoherent appeal documents may be struck out.
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31 July 2024 |
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The tribunal lacked jurisdiction because the respondent’s property value exceeded the statutory pecuniary limit; proceedings were quashed.
Land law – Pecuniary jurisdiction – District Land and Housing Tribunal’s jurisdictional limit under s.33(2)(a) – Valuation evidence disclosing value above statutory cap – Tribunal proceeding without jurisdiction – Supervisory powers of High Court under s.43(1)(a) & (b) – Reversal and quashing of proceedings – Directive to refile in competent registry.
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30 July 2024 |
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Court held it was functus officio and dismissed application for extension to seek re‑admission of a dismissed appeal.
Functus officio — once a court has decided and announced a matter it cannot reopen that decision; application for extension of time to seek re‑admission of a dismissed appeal is not maintainable where the court had already disposed of the appeal after hearing the appellant.
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30 July 2024 |
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A review challenging a ruling on board-resolution requirement was an appeal in disguise and dismissed with costs.
Civil Procedure — Review jurisdiction under Order XLII Rule 1 and section 78 — limited to new evidence or mistake apparent on face of record — review not a substitute for appeal; application alleging error on board-resolution requirement held to be appeal in disguise; court functus officio.
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30 July 2024 |
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Plaintiff failed to prove defendant's trespass and demolition of a surveyed plot due to absence of survey evidence and witness.
Land law – Trespass/encroachment to surveyed land – burden of proof on person alleging trespass. Evidence – requirement to call material witness (surveyor) and effect of failure to produce key survey plan/attachments. Adverse inference – Hemed Saidi principle applied where material witness not called. Damages – cannot be established absent proof of encroachment and extent of demolition.
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30 July 2024 |
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Appeal struck out for failing to sue respondent in capacity as estate administrator; record remitted for correction.
Land procedure — Capacity to sue — Parties must be sued in correct capacity where an estate is involved — Tribunal record must reflect administrator status — Remedy: rectify record and strike out defective appeal with liberty to refile.
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30 July 2024 |
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30 July 2024 |
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Appeal allowed where fraud/identity was not pleaded or proved and the owner was not shown to have been served with sale notices.
Land law – sale of mortgaged property – validity of auction where owner not served with requisite default/sale notices. Civil procedure – pleading and trial management – necessity to frame specific issues of fraud/forgery/identity to allow evidence and proof. Evidence – allegations of fraud/forgery require specific pleading and adequate proof; failure to frame issue vitiates findings. Remedies – where sale is invalid for procedural defects, declaration of void ab initio and restoration of parties.
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30 July 2024 |
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A tribunal’s hearing of a fresh suit despite a pending retrial order rendered its proceedings null and was quashed.
Civil procedure – Res sub judice – Section 8 Civil Procedure Code – prohibition against trying a suit where the same matter is directly and substantially in issue in a previously instituted pending suit between same parties. Retrial/order de novo – effect of failure to comply with Tribunal order directing rehearing at Ward Tribunal. Jurisdictional error – hearing of fresh suit while prior suit pending renders subsequent proceedings null and void. Revisionary powers – Section 43 Land Disputes Courts Act – quashing and setting aside illegal tribunal proceedings.
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30 July 2024 |
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30 July 2024 |
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Appellant failed to prove respondent’s duty to secure vacant possession and slept on rights; lease expired, appeal dismissed with costs.
Land law – lease agreement – vacant possession – whether lessee proved lessor’s obligation to evict tenants for renovations. Evidence – burden of proof (Law of Evidence Act ss.110–111) – party alleging facts must prove them. Procedural – failure to adduce documentary or witness evidence; delay/’sleeping on rights’.
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30 July 2024 |
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30 July 2024 |
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Court granted temporary injunction preventing sale of disputed properties pending main suit, finding triable issues and irreparable harm.
Civil procedure — Temporary injunction — Conditions for grant: prima facie/triable issue, irreparable injury, balance of convenience (Atilio v Mbowe).; Land law — Alleged unlawful sale/auction of mortgaged/charged properties and dispute over loan payments and settlement deed.; Jurisdictional objection — Allegation of court being functus off due to prior consent judgment held premature and for determination in main suit.; Relief — Interim restraint on disposal of specified land pending hearing of main case.
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30 July 2024 |
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30 July 2024 |
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30 July 2024 |
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An unincorporated market association lacked legal capacity to sue; suit struck out for want of locus standi.
Civil procedure – preliminary objections – locus standi – capacity to sue – unincorporated association lacks legal personality to sue; Government Proceedings Act s.6(2) (90-days' notice) raised but not decided.
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30 July 2024 |
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An appeal filed after the 45‑day limit is incompetent; Limitation Act exclusion requires a formal application, so appeal struck out with costs.
Civil procedure – Appeals – Time limitation – Appeal under section 45(2) of the Land Disputes Courts Act must be lodged within 45 days. Civil procedure – Limitation – Section 19 Law of Limitations Act (exclusion for time to obtain copies) is not automatically available in an appeal and requires a proper application for extension or to be pleaded. Procedure – Preliminary objections on point of limitation are fatal and dispose of substantive issues if sustained.
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30 July 2024 |
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30 July 2024 |
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The plaintiff challenging the Registrar's registration act must appeal under section 102(1), not institute a fresh suit.
Land Registration Act s102(1) – appeal against Registrar’s decision, order or act – remedy by appeal to High Court within three months. Competence of proceedings – challenge to Registrar’s registration – must be by statutory appeal, not fresh suit. Civil procedure – preliminary objection on point of law – competence and proper forum for challenging administrative acts.
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29 July 2024 |
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Failure to properly describe the suit property vitiates land proceedings, rendering judicial orders and decisions null and void.
Land law – Description of suit property – Inadequate and inconsistent identification of subject matter – Proceedings and orders rendered null and void – Powers of revision under section 43 Land Disputes Courts Act.
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29 July 2024 |
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Court quashed trial proceedings for defective, inconsistent description of the land in dispute and allowed fresh suit to be filed.
Land law — description of suit property — defective/inconsistent pleadings — Rule 3 Order VII CPC — nullity of proceedings — section 43 Land Disputes Courts Act — revisionary powers — quash decision and set aside orders.
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29 July 2024 |
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Res judicata under section 9 CPC barred the appellant’s land claim; amendment order and dismissal of appeal affirmed.
Civil procedure – Res judicata (section 9 CPC) – constructive res judicata – bar to relitigation of same subject matter by parties or their privies. Succession/Representative capacity – distinction between personal capacity and administratrix of estate; effect of letters of administration on locus to litigate. Pleadings – amendment and joinder – tribunal’s power to order amendment where part of claim barred by res judicata.
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29 July 2024 |
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29 July 2024 |
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DLHT correctly struck out improper revision under section 19 LDCA; appellants awarded costs for respondent’s incompetent application.
Land law – Remedies from Ward Tribunal decisions – Section 19 LDCA requires appeal to DLHT, not revision; DLHT can revise suo motu under section 36. Civil procedure – Competence versus merits – tribunal may first determine competence; limitation need not be decided if matter is incompetent. Costs – Courts must give reasons for awarding or refusing costs; failure to do so is an error and may justify awarding costs.
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29 July 2024 |
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An extension-of-time order is interlocutory and not appealable; appeal struck out and matter remitted to the tribunal.
Civil procedure – appealability – interlocutory orders v. final orders – "nature of the order" test on appealability; Procedure – extension of time to apply to set aside dismissal – grant of extension does not finally determine parties' rights; Premature appeal – striking out and remitting to trial tribunal; Right to be heard – availability in subsequent proceedings.
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27 July 2024 |