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Citation
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Judgment date
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| September 2024 |
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Review granted where application was struck out due to counsel’s misdirection and an apparent error on the record.
Civil procedure — Review under section 78(1) and Order XLII r.1(b) — Apparent error on face of record — Non-joinder objection premature where suggested party was never in original proceedings — Sanctity of court record; withdrawal by counsel v. court-raised issues — Reinstatement of struck-out application.
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30 September 2024 |
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30 September 2024 |
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A plaint by foreign-owned companies failing to plead TIC approval lacked a cause of action and was struck out.
Land law – capacity to hold land – non-citizen/foreign-shareholder companies require TIC approval for land – plaint must plead TIC approval or investment purpose; Cause of action – essential facts must be pleaded; Preliminary objection – pure point of law may be decided at PTC; Remedy – plaint failing to disclose cause of action can be struck out.
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30 September 2024 |
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Plaintiff defaulted; auction was irregular but transfer was valid and bona fide purchaser protected; remedy is damages, not set-aside.
Land law – mortgagee's power of sale; statutory notice requirements (Land Act s.127) and auction notice (Auctioneers Act s.12); protection of bona fide purchaser and effect of registration (Land Act s.135); remedy for irregular sale is damages (s.135(4)); Registrar of Titles’ 30‑day notice and transfer procedure.
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30 September 2024 |
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An application for a temporary injunction under Order XXXVII requires a pending suit and is struck out if that suit is no longer pending.
Civil procedure – Interim injunctions – Order XXXVII Rule 2(1) CPC – Requirement of a pending suit as precondition for temporary injunction – Application overtaken by events where main suit is struck out for lack of jurisdiction.
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30 September 2024 |
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A contractual challenge to the formation/terms of a sale agreement is not a land dispute; the Land Division lacks jurisdiction.
Jurisdiction – High Court (Land Division) – limited to disputes concerning interests in land (ownership, possession, use). Contract v. land dispute – disputes about formation/terms of sale agreements are contractual and do not automatically constitute land disputes. Disposition of land – sale is a mode of disposition but the sale agreement is evidence of disposition; jurisdiction arises only where interest/possession/usage is disputed. Procedural consequence – matter founded purely on contractual formation/terms may be struck out for want of Land Division jurisdiction
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30 September 2024 |
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A preliminary objection that the trespass suit was time‑barred was dismissed; recovery of land attracts a 12‑year limitation.
Limitation of actions – recovery of land v. tort of trespass – applicable limitation period under item 22 Part I, Schedule to the Law of Limitations Act, Cap 89 R.E. 2019; preliminary objection – pure point of law apparent on face of plaint (Mukisa; Lyamuya).
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30 September 2024 |
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Temporary injunction granted pending trial after applicant showed triable issues, irreparable harm, and favourable balance of convenience.
Land law – interim injunction – Atilio v. Mbowe test (prima facie case, irreparable injury, balance of convenience) – disputed purchase agreement versus expired lease – possession and eviction pending determination of ownership
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30 September 2024 |
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30 September 2024 |
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Consent judgment recorded: plaint amended, secured property sale authorized, guarantor exonerated, and repayment schedule imposed.
Civil procedure – Consent judgment – Settlement recorded and entered under Order VIII Rule 34 CPC following court-referred mediation
Land/security – Deposit of title as collateral – Power of sale by lender to realize part of secured debt. Amendment of plaint – Correction of mistaken claimed amount by consent. Guarantor liability – Exoneration of guarantor upon realization of sale proceeds
Enforcement – Execution of decree on default against principal debtor
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30 September 2024 |
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Appellants' land claim dismissed for failure to show lawful acquisition and insufficient documentary evidence.
Land law – ownership disputes – weight of certificate of title – requirement to show lawful acquisition (Form N.19) – pleadings and evidence – reliance on pleaded ownership – trespass remedies.
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30 September 2024 |
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Failure to involve neighbouring occupants in boundary recovery rendered the survey unlawful and required a re-survey and striking out of the suit.
Land law – Boundary recovery and survey – Requirement to give notice and involve affected owners – Principles of natural justice – Land Survey Act safeguards; Procedural irregularity renders survey unlawful; Re-survey using GPS/RTK and independent officer ordered; Suit struck out pending lawful recovery.
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30 September 2024 |
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30 September 2024 |
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Whether a taxing officer’s failure to apportion awarded costs renders the ruling unenforceable and warrants reversal.
Taxation of costs – Apportionment of taxed costs among multiple defendants – Enforceability of court orders – Remittal to Taxing Officer for fresh determination – Requirement to state joint and several liability where applicable.
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30 September 2024 |
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First‑appeal court dismissed land ownership claim; rescission and evidence failed to establish appellant’s title.
Land law – ownership dispute; rescission of sale agreement and refunds – burden of proof under s.110 TEA – alleged forgery/discrepancy in land size – Tribunal’s duty to hear parties (Article 13(6)) – first appeal: re-evaluation of evidence.
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30 September 2024 |
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Appeal dismissed for want of prosecution after appellants failed to file submissions or appear; merits not decided.
Land appeal — procedural default — failure to file ordered written submissions and failure to appear — dismissal for want of prosecution; issues raised but not decided: jurisdiction, right to be heard, ex parte judgment, ownership, bona fide purchaser.
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30 September 2024 |
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Appeal dismissed for want of prosecution after appellants failed to file submissions or appear; no order as to costs.
Civil procedure — failure to prosecute — dismissal for want of prosecution; non-compliance with court-ordered filing schedule; absence from court; no order as to costs.
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30 September 2024 |
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A respondent’s submissions lacking filing date and registry signature are rejected; non-joinder of liquidator was not fatal.
Civil procedure – Procedural compliance – Filing date and registry endorsement on documents served to parties – served copies lacking endorsement are fatally defective. Civil procedure – Preliminary objection – Non‑joinder/misjoinder – Necessary party doctrine; a party is necessary only if essential for complete and final adjudication. Administrative/land claims – Compensation claims against government – distinction from disputes involving bank/liquidator interests
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30 September 2024 |
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30 September 2024 |
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Applicant proved on balance of probabilities that the attached house is a matrimonial home and not liable to attachment.
Execution — Objection to attachment — Matrimonial/residential home exempt from attachment — Order XXI r.58; s.48(1)(e) CPC; burden on objector to prove interest at date of attachment — Wrong citation of statute not fatal — Court may determine attachment objections without interfering with Court of Appeal decision.
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30 September 2024 |
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Appeal allowed: trial proceedings quashed because plaint failed to sufficiently describe the disputed immovable property.
Civil procedure – Pleading requirements – Description of immovable property – Order VII Rule 3 Civil Procedure Code applies to land disputes; plaint must sufficiently identify property
Evidence – Variance – Oral evidence as to size, boundaries or neighbours cannot cure unpleaded particulars and must be ignored if at variance with pleadings. Land law – Trespass claims require sufficiently identified property for proof and for issuance of executable decrees. Procedural competence – Defective pleadings rendering proceedings incompetent justify quashing proceedings, judgment and decree
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30 September 2024 |
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The applicants' inconsistent pleading and inadequate land description rendered the suit incompetent and it was struck out.
Land law — Pleading — Adequate description of immovable property — Order VII Rule 3 CPC — Joinder of parties — Representative suit (Order I Rule 8) — Incompetency and striking out where subject matter unclear.
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30 September 2024 |
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30 September 2024 |
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Appeal dismissed: tribunal rightly found disputed area partly public open space and appellants lacked enforceable title or lease.
Land dispute — ownership and possession — distinction between public/open space and titled parcel; effect and enforceability of informal or 'gentlemen's' agreement; requirement to assess evidence on balance of probabilities; appellate review upholding trial tribunal where claimants fail to prove exclusive rights.
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30 September 2024 |
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30 September 2024 |
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Court overruled the preliminary objection, allowing the suit to proceed, citing proper service of statutory notice.
Local Govt Law – judicial procedures – statutory notice of intention to sue – sufficient compliance with statutory requirements.
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30 September 2024 |
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Sale and transfer of mortgaged land without statutory notices and contrary to a court order is unlawful and void.
Land law – mortgagee’s power of sale – statutory 60-days' notice of default; receiver duties – written appointment and demand note (s.128); sale by tender – 10-day notice to mortgagor (s.132(4)); effect of court’s status quo order – transfer contrary to court order void ab initio; damages require proof of loss.
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30 September 2024 |
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Application to set aside dismissal denied for failure to prove sufficient cause and repeated non‑compliance with court orders.
Civil procedure – Setting aside dismissal orders – Order VIIIB Rule 20(2) – discretionary relief on just terms; evidentiary proof of incapacity or travel required. Litigation conduct – client‑centric litigation and strict compliance with court orders; negligence/lack of diligence not ordinarily good cause
Costs – discretionary refusal where applicant partly to blame
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30 September 2024 |
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Applicant granted 14-day extension to seek setting aside of ex parte judgment due to sufficient cause and alleged illegality.
Extension of time; sufficient cause vs negligence; technical delay; ex parte judgment; illegality on face of record; non-joinder of necessary parties; Ward Tribunal requirement (Written Laws (Misc. Amendment) (No.3) Act, 2021); exercise of judicial discretion
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30 September 2024 |
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Failure to serve the mandatory 90‑day statutory notice on local authorities rendered the applicant's suit incompetent and struck out.
Government proceedings – mandatory ninety days' notice to Attorney General/local government before commencing suit; non-compliance renders suit incompetent. Civil procedure – preliminary objection – court may strike out suit for failure to comply with mandatory statutory prerequisites. Local government – suits against district or village councils treated as government proceedings after statutory amendments
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30 September 2024 |
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30 September 2024 |
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Court allowed extension of time to file revision, holding alleged illegality can justify enlargement of time.
Extension of time – s.14 Law of Limitations Act – sufficiency of cause and accounting for delay; alleged illegality in impugned decision as ground for enlargement of time; discretion of court; precedents: Devram Valambhia, Lyamuya Construction.
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30 September 2024 |
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30 September 2024 |
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30 September 2024 |
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Technical procedural delays justified a 14‑day extension to lodge an appeal; application granted, no costs.
Civil procedure – Extension of time to appeal – Technical delay consisting of withdrawn application with leave to refile, striking out for being out of time, and delayed service – constitutes good cause for extension. Appeal procedure – Time limits for lodging appeals – court may grant limited extension where applicant demonstrates procedural or technical impediments
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30 September 2024 |
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30 September 2024 |
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A challenge to the Registrar’s land-registration act must be by appeal under section 102(1); a fresh suit was incompetent and struck out.
Land law – Challenge to Registrar’s act – Section 102(1) Land Registration Act – Appeal to High Court within three months is the exclusive remedy – Competence of suit where plaint seeks to set aside registration – Preliminary objection sustained.
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29 September 2024 |
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27 September 2024 |
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Extension granted: technical delay from a struck-out appeal was excusable and not inordinate, so leave to appeal is extended.
Extension of time; technical delay from prosecuting an incompetent appeal; section 14(1) Law of Limitation Act; section 41(2) Land Disputes Courts Act; Fortunatus Masha; Lyamuya test on accounting for delay and inordinate delay; comparison with 45-day statutory appeal period.
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27 September 2024 |
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27 September 2024 |
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Applicant failed to plead a primafacie case, irreparable harm or favourable balance of convenience for injunctive relief; application dismissed.
Civil Procedure – Interim injunctions – Requirements for granting temporary injunctions – Atilio v Mbowe test: triable issue/primafacie case, irreparable harm, balance of convenience – Sufficiency of affidavit to establish the conditions for injunctive relief.* Lease disputes – eviction and access to premises – applicant’s burden to plead facts supporting injunctive relief.
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27 September 2024 |
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27 September 2024 |
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27 September 2024 |
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Non-compliant locus in quo visit rendered the tribunal's proceedings and judgment null, leading to quash and remittal.
Land law – locus in quo – site visit procedural requirements – presence of parties and advocates; evidence on oath; cross-examination; recording of proceedings and court observations. Failure to observe locus in quo safeguards renders site-visit proceedings and any judgment relying on them a nullity
Remedy – quashing of defective proceedings, remittal to trial tribunal to proceed from pre-visit stage; parties to bear own costs
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27 September 2024 |
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27 September 2024 |
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27 September 2024 |
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Suit dismissed as res judicata because prior dismissal resolved same land dispute between same parties.
Civil procedure – Res judicata (section 9 CPC) – constructive res judicata where prior dismissed suit on compensation involved same land and parties; dismissal is a final determination barring re-litigation.
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27 September 2024 |
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27 September 2024 |
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The applicant failed to prove matrimonial interest; prior decree stands and property is liable to execution.
Land law – matrimonial property claims; Order XXI r.62 CPC – suit to establish proprietary right after objection; res judicata/functus officio – court not revisiting its prior decree; proof of contribution – requirement of cogent documentary evidence; execution/attachment of property pursuant to valid decree.
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26 September 2024 |
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Plaintiffs failed to prove title to village land; trespass and damages claims dismissed with costs.
Land law – unsurveyed village land – proof of title – burden of proof in civil cases; necessity of calling material witnesses (vendors and village authorities) – adverse inference where material witnesses are not called (Hemedi Saadi v Mbilu) – weight of village council minutes in resolving village boundary/ownership disputes – trespass claim requires establishment of proprietary right.
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26 September 2024 |