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Citation
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Judgment date
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| December 1997 |
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Applicant granted extension to file notice of appeal after counsel’s mistaken filing in wrong court; costs to abide appeal.
Civil procedure – extension of time – Rule 4 Court of Appeal Rules 1996 – enlargement of time to file notice of appeal – solicitor’s mistake – reliance on counsel – mistake of filing in wrong court excusable; costs to abide appeal.
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21 December 1997 |
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A petition challenging a final appellate election decision was time-barred, misdirected at the Attorney General, and non-justiciable.
Constitutional procedure – time limit for constitutional petitions (Rule 4(1), 30 days); Government immunity – s.4(5) Government Proceedings Act and Art.128(4) bar actions against Government for judicial acts; Finality and justiciability – final Court of Appeal decisions in election appeals cannot be challenged under Art.137; Trial procedure – constitutional issues arising during trial must be framed and referred per Wambuzi.
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18 December 1997 |
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Extension of time granted where short delay arose from counsel's elevation to the bench and prompt replacement was secured.
Civil procedure – extension of time to appeal – delay caused by counsel’s elevation to the bench – sufficient reason and diligence – short delay – notice of appeal time limit.
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11 December 1997 |
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A litigant was granted extension of time to appeal after his counsel mistakenly filed in the wrong court.
Civil procedure – Extension of time – Notice of appeal filed in wrong court by counsel – Whether litigant penalized for counsel's mistake – Sufficient reason for extension under Rule 4, Court of Appeal Rules 1996.
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2 December 1997 |
| November 1997 |
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An appeal against an interim stay of execution is incompetent absent leave first sought from the trial court.
Civil procedure – Appealability – Interim orders – Stay of execution – Not appealable as of right under Order 40(1)(1) – Leave required – Leave must first be sought from trial Court by motion on notice (Order 40(1)(3)).
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18 November 1997 |
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Failure to lodge the mandatory address for service under the applicable Supreme Court Rules bars complaint of late service; application dismissed with costs.
Civil procedure – Appeals – Applicable rules: appeal governed by the rules in force at filing; mandatory compliance with address-for-service requirement (Rule 75(1) Supreme Court Rules); failure to lodge address disqualifies party from service and complaining of late service; Rule 87(1) – service of memorandum and record only on those complying with address requirement.
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18 November 1997 |
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Court held Registrar‑certified time for preparing the record is excluded, so the appeal was within the statutory period.
Non‑Performing Assets Recovery Statute (No.11/1994) – s.17(3) time‑limit for appeals – s.17(4) permits application of appeal rules to Tribunal appeals – Court of Appeal Rules, r.82(2) exclusion of time for preparation/delivery of record – necessity of record and memorandum – s.17(5) does not bar interlocutory issues arising in an appeal.
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18 November 1997 |
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A mortgagee's authorised private treaty sale is complete on part payment; an injunction pending appeal is futile once an equitable interest exists.
* Mortgage and secured transactions – sale by mortgagee – private treaty sale under mortgage and statutory powers – purchase becomes complete on part payment and purchaser acquires equitable interest.
* Civil procedure – injunction pending appeal – futility where subject-matter already sold and equitable interest acquired.
* Interpretation – inapplicability of section 50 Civil Procedure Act (sales in execution) to mortgagee disposals under statutory/contractual powers.
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18 November 1997 |
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Court refused a late preliminary objection raised without following Rule 81, ordering the appeal to proceed.
Civil procedure – Preliminary objection at hearing – Rule 101(b) requires leave; Rule 81 requires prior formal application to strike out appeals – Late objections without good cause are improper and prejudicial – Election appeals to be heard expeditiously (Parliamentary Elections statutory scheme and Rule 34) – Costs in the cause.
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3 November 1997 |
| October 1997 |
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A non-party claiming interest in attached property may obtain a stay pending appeal to prevent rendering the appeal nugatory.
* Civil procedure – Stay of execution – Non-party objector to attachment – right to object and seek preservation pending appeal under O.19 r.55 C.P.R.;
* Court of Appeal Rules – Rule 75(4) – Notice of Appeal may be lodged without prior leave where appeal lies only with leave; failure to obtain leave beforehand not fatal;
* Practice – Preferable to apply to trial court first for stay, but appellate court may intervene in special or urgent circumstances;
* Principles for stay – irreparable injury, prospects of success, imminence of sale, and protection of appeal from being rendered nugatory.
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30 October 1997 |
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Applicant granted extension of time where service was impeded and delays caused by counsel and record retrieval.
Civil procedure – extension of time under Rule 4 – sufficiency of reasons – service impeded by refusal of personal service and counsel’s closed chambers – negligence of former counsel not necessarily fatal – change of advocates and difficulty obtaining record may justify extension.
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16 October 1997 |
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Delay by the court in supplying the record can justify extension of time if the applicant exercised due diligence.
Court of Appeal — extension of time under rule 4 — meaning of "sufficient reason"; delay by court in supplying record as sufficient reason; due diligence required; poverty not a sufficient reason; delays by Legal Aid counsel excused if not attributable to applicant; admissibility and sufficiency of supporting affidavit.
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1 October 1997 |
| September 1997 |
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Counsel’s inadvertent failure to serve a request for proceedings can justify extension of time to file an appeal.
Court of Appeal — extension of time under Rule 4 — "sufficient reason" — counsel’s inadvertent omission — service of application for record of proceedings — delay in preparation of proceedings — Registrar’s endorsement on fees — discretion to extend time.
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23 September 1997 |
| June 1997 |
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20 June 1997 |
| May 1997 |
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Failure to make and serve the written request for the record as required by Rule 81(1)–(2) justified striking out the notice of appeal.
Civil procedure – Appeal – Requirement under Rule 81(1)–(2) to request record within time and to serve a copy of the request on the respondent – Mandatory nature of rule – Registrar cannot on own motion issue certificate of preparation time – Failure to comply justifies striking out notice of appeal.
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5 May 1997 |
| April 1997 |
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Applicant granted extension to appeal because counsel's gross negligence constituted sufficient cause.
* Civil procedure – Extension of time – sufficiency of cause – gross professional negligence of counsel constituted sufficient cause to extend time under Rule 4.
* Election law – election petition – costs orders against Electoral Commission – public importance of appeals involving public funds.
* Standing – Electoral Commission succeeds Interim Election Commission’s rights and liabilities under sections 3 and 41 of the Election Commission Act, 1997.
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8 April 1997 |
| March 1997 |
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Consent stay ordered pending Supreme Court appeal: decretal sum deposited in joint account, payable according to Supreme Court outcome.
Bank guarantee – interpretation and maturity where appeal transferred to Court of Appeal – consent stay of execution – deposit into joint account pending Supreme Court appeal – automatic disbursement contingent on Supreme Court outcome – discharge of third‑party bank guarantee.
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14 March 1997 |
| February 1997 |
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The appellant successfully reclaimed property vested in Government as a departed Asian; respondent's transfer and title were held void.
Property law – Departed Asians Property Custodian Board Decree No. 27/1973 and Expropriated Properties Act No. 9/1982 – vesting of departed Asians’ property in Government; validity of transfers after 6‑10‑72; effect of section 1(2)(a) of Act No. 9/1982 on later registrations; validity of Minister’s Certificate of Repossession; admissibility and effect of handwriting expert evidence.
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21 February 1997 |
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Respondent held to be co-owner having paid his share; resulting trust and fraud not established; appeal dismissed with costs.
* Land law – co-ownership – tenants in common – effect of registered Transfer Deed and Certificate of Title as evidence of ownership.
* Equity – resulting trust – arises only where payer did not intend transferee to benefit; not established here.
* Registration of Titles Act – effect of registration; fraud to impeach title must be strictly proved.
* Power of attorney – unregistered instrument acted upon may estop principal from denying it; revocation and estoppel.
* Remedies – entitlement to share of rents and profits from date of registration; limitation defence inapplicable to co-owner accounting.
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21 February 1997 |
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Respondent proved payment for half the property; registration conferred co‑ownership and entitlement to half the rents; appeal dismissed.
* Land law – transfer and registration – effect of a registered Transfer Deed and Certificate of Title as evidence of proprietary rights. * Trusts – resulting trust; presumption and requisite intention where co‑purchase exists. * Fraud – necessity of strict proof to impeach registered title. * Powers of attorney – unregistered power acted upon; estoppel. * Accounting between co‑owners – entitlement to rents from date of registration. * Limitation – inapplicability of Limitation Act argument to accounting between co-owners.
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21 February 1997 |
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Acceptance of a consent costs order by an appellant can waive the right to challenge its legality on appeal.
Costs — Consent order — Effect of accepting benefit of consent order — Waiver and approbation-reprobation doctrine; Taxation of costs — Registrar's jurisdiction and proper procedure — Compliance with Advocates (Remuneration and Taxation of Costs) Rules; Review/setting aside consent orders — grounds: fraud, collusion, mistake, public policy.
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21 February 1997 |
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Extension of time granted for filing appeal due to counsel's illness in an election petition matter.
Civil Procedure – Extension of time – Election petition – Sufficient cause due to counsel's illness – Public importance of election matters.
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21 February 1997 |
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Appeal dismissed: respondent held to have paid his share, no resulting trust or fraud proved, entitled to half rents from 1972.
Property law — co-ownership and transfer under Registration of Titles Act; resulting trust — requirement of intention; fraud in registration — strict proof required; power of attorney — estoppel where acted upon; entitlement to rents by registered co-owner.
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21 February 1997 |
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Whether departed-Asians legislation vested the property in Government, nullifying the respondent’s registered title and validating the repossession certificate.
Property law – Departed Asians’ property – Vesting under Departed Asians Property Custodian Board Decree (No.27/1973) and Expropriated Properties Act (Act No.9/1982) – Effect of statutory vesting on subsequent transfers; Registration of Titles protection defeated where statute nullifies transfers; Validity of Minister’s Certificate of Repossession; Effect of forged or void transfers by departing Asians.
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21 February 1997 |
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Section 5(2) of the Succession Act bars the High Court from granting probate over movable property where the deceased was domiciled abroad.
* Succession law – Jurisdiction to grant probate – Effect of domicile – Section 5(2) Succession Act limits local grants where deceased domiciled abroad; resealing of foreign grants is the appropriate procedure.
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5 February 1997 |
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Stay of execution dismissed as inability to pay is not considered sufficient cause.
Civil procedure – Stay of execution – Requirements for sufficient cause – Impecuniousness as insufficient cause
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5 February 1997 |
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Rain alone does not excuse the appellant’s failure to appear; reinstatement requires proof attendance was impossible.
Civil procedure – failure to prosecute – reinstatement of appeal – ‘sufficient cause’ – weather as excuse – rain per se not sufficient; exception where travel is impossible (e.g., impassable roads).
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5 February 1997 |
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Rain alone is not sufficient cause to reinstate an appeal dismissed for want of prosecution; only proved impossibility (e.g., impassable roads) may suffice.
Civil procedure – non-appearance – dismissal for want of prosecution – "sufficient cause" to reinstate an appeal – weather-related excuses; rain per se insufficient, but impassable roads or similarly disabling conditions may suffice if proven.
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5 February 1997 |
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Court of Appeal has no jurisdiction to hear appeals from interlocutory orders in election petitions absent express statutory provision.
Election law – Appeals – Jurisdiction of Court of Appeal – Appeals confined to decisions determining election petitions – No statutory right to appeal interlocutory orders; Civil Procedure Act/Order 42 – interlocutory versus final orders; Election Petition Rules – expedition of election matters.
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5 February 1997 |
