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Citation
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Judgment date
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| December 2001 |
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Customary tenure prevented District Land Board allocation; lease obtained without required consultation was fraudulent and cancelled.
* Land law – Definitions of lawful and bona fide occupants – scope of section 30 and inclusion of purchasers (section 30(5)).
* Customary tenure – establishment by long occupation, purchases from earlier occupants, improvements and recognition (sections 2 and 4).
* Land allocation – limits on District Land Board’s power where land is held under customary tenure (section 60(1)(a)).
* Administrative procedure – requirement to consult/advertise allocations (Land Regulations, reg 22) and effect of fraudulent recommendations.
* Relief – cancellation of lease/registration obtained in breach of statutory procedure and by fraud.
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21 December 2001 |
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Civil Remedies|Damages
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20 December 2001 |
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Criminal law
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17 December 2001 |
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Affidavits in summary suits must have properly certified annexures; without them an application to defend may be dismissed.
Civil procedure — Summary suits (Order 33 CPR) — Application to defend — Supporting affidavit must properly exhibit and refer to documentary evidence — Exhibits must be sealed, marked and certified under Rule 8 (Commissioners for Oaths (Advocates) Act) — Affidavit without proper annexures may be hearsay and fail to disclose triable issue — Objection to plaint non‑compliance with Order 6 (1998 amendment) inappropriate at that stage.
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13 December 2001 |
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Criminal law|Evidence Law|Evaluation of Evidence
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12 December 2001 |
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Appellate court reduced appellant's 17-year rape sentence to 7 years, finding the original term manifestly excessive.
Criminal law – Rape – Sentence – appellate interference where sentence is manifestly excessive – relevance of prevalence of crime as a sentencing factor – need to consider offender’s circumstances and comparable sentences.
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5 December 2001 |
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Circular inviting voluntary termination did not amend Trust Deed nor unconditionally confer pension rights; suit dismissed.
Pension law – construction of employer circular offering voluntary termination/early retirement – whether circular amended Trust Deed – Trustees’ exclusive powers under Trust Deed – employer’s lack of unilateral amendment power – misrepresentation claim time-barred – special damages must be pleaded and strictly proved.
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3 December 2001 |
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Civil Procedure|Actions and applications|Taxation law|Tax Law
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2 December 2001 |
| November 2001 |
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16 November 2001 |
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Criminal law|Evidence Law|Evaluation of Evidence
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11 November 2001 |
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Payment of survey fees and temporary permission do not vest legal title; formal lease and statutory procedure required.
Land law – municipal/town land – temporary licence/occupation versus lease – essential terms required for an enforceable lease (parties, premises, commencement/duration, rent/consideration) – payment of survey fees does not vest legal title – necessity of zoning, formal application, and controlling authority's signed grant.
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5 November 2001 |
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Dismissal wrongful where employer failed to prove misconduct; secondary evidence allowed after employer withheld original salary document.
Employment law – wrongful dismissal – employer must prove justification for termination; Evidence – secondary evidence admissible where original document is wrongfully withheld by opponent; Damages – special damages require strict proof but oral evidence admissible where original withheld; general damages may be awarded alongside interest at court rate.
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4 November 2001 |
| October 2001 |
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An application filed by an advocate without a valid practising certificate is incompetent and must be struck out.
Practice and procedure – advocate’s practising certificate – documents filed by an advocate without a valid practising certificate (outside any grace period) are invalid and cannot commence a cause; evidence in affidavit raising a material issue must be met by affidavit in reply; incompetence and striking out of application.
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11 October 2001 |
| September 2001 |
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Equity can grant relief against forfeiture where expropriation excused non‑performance and no physical re‑entry occurred.
* Land law – lease – forfeiture – relief against forfeiture under s.27 Judicature Statute and equitable relief under ss.16(2)/35. * Effect of expropriation (Departed Asians custody) on lessee’s obligations – impossibility of performance. * Registration of Titles Act s.184 inapplicable where no physical re‑entry and lease not voided. * Appellate review of discretionary relief – interference only for misdirection or manifest wrong.
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21 September 2001 |
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Court upheld equitable relief against forfeiture and rejected proprietor's unilateral re‑entry and registration attempt.
Relief against forfeiture; Judicature Statute ss.16, 27 and 35; equitable relief where statute silent; effect of expropriation on lease obligations; Registration of Titles Act s.184 and re‑entry; self‑help by proprietor; appellate review of discretionary relief.
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21 September 2001 |
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20 September 2001 |
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Taxing officer’s reasonable assessment of instruction fee upheld; striking out order held interlocutory; reference dismissed.
Taxation of costs – instruction fees – Third Schedule paragraph 9 – reasonableness of instruction fee; preliminary objection striking out plaint – interlocutory vs final order; appellate interference with taxing officer’s discretion only for wrong principle and substantial prejudice.
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20 September 2001 |
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Bank did not authorize afternoon dealings; bank employee on a frolic of his own held personally liable; appeal dismissed.
Banking law — foreign exchange transactions — distinction between an authorized bank transaction and a private transaction by a bank employee; employee acting on a 'frolic of his own' renders subsequent dealings not binding on the bank; personal liability of bank employee for misapplied customer funds; costs follow the event.
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18 September 2001 |
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Receivers in possession may object to attachment; objector proceedings determine possession, not ultimate title or debenture registration.
* Receivers – possessory rights – locus standi to bring objector proceedings. * Objector proceedings – inquiry limited to possession at date of attachment; questions of title generally excluded. * Attachment – property in possession of receivers prior to attachment not liable to subsequent attachment. * Registration of debenture/mortgage (Companies Act) is a substantive title issue for separate proceedings.
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18 September 2001 |
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Application to validate late service of Notice of Appeal dismissed as incompetent where appeal had been withdrawn and no legal basis was cited.
Civil procedure – appeal withdrawn by consent – Rule 93(3) Rules of Court – effect of lodging consent in registry (mandatory striking out). Civil procedure – competence of notice of motion – necessity to cite rule or law for relief sought; failure may render application incompetent. Restoration/reinstatement of appeals – no appeal to restore once struck out by operation of law.
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13 September 2001 |
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Compulsory repossession under the Expropriated Properties Act attracts mandatory compensation; trial court erred refusing and delaying payment.
Expropriation — Expropriated Properties Act — compulsory acquisition under Article 26 — mandatory compensation under s.11(3) and formula in s.11(4) — ministerial offers — application of Order 11 r 6 CPR on admitted offers — unjust enrichment not a bar to statutorily mandated compensation — claim for improvements to be litigated separately.
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12 September 2001 |
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Court accepted withdrawal but dismissed the appeal and awarded costs where respondent withheld consent under Rule 93.
Civil procedure – withdrawal of appeal – effect of respondent withholding consent – dismissal of appeal and costs awarded under Rule 93.
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12 September 2001 |
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Court upheld respondent's employee status and employer liability for inadequate safeguards, dismissing the appeal with costs.
* Employment law – determining employee versus independent contractor by control and supervision; vicarious liability for workplace injuries.
* Tort — negligence — employer's duty to provide safe working conditions; adequacy of machine safeguards and location of controls.
* Contributory negligence — absence of direct evidence and inadequate safeguards can preclude finding contributory negligence.
* Damages — special damages may be awarded without documentary receipts where figures are reasonable; appellate restraint on disturbing general damages absent error in principle or manifest excess.
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12 September 2001 |
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Appellant failed to prove res judicata or superior title; long possession and predecessor's acquisition upheld; appeal dismissed.
Land law – succession and possession – disputed kibanja – proof of title by acquisition from local chief and long possession; res judicata – requirement of records to show previous suit between same parties; appellate review – re-appraisal of factual inferences on second appeal under rule 31(2).
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5 September 2001 |
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4 September 2001 |
| August 2001 |
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Criminal law
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28 August 2001 |
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22 August 2001 |
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A trial court’s refusal to grant a reasonable adjournment and failure to provide a reasoned judgment justified setting aside its order.
Civil Procedure – adjournment – judicial discretion – failure to exercise discretion judiciously – requirement for reasoned judgment – evaluation of evidence – appellate review – breach of contract – proof of special damages.
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3 August 2001 |
| July 2001 |
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Whether the applicant’s agreement was inadmissible under ss.65–66 Advocates Act and if Court Registrars are "registering authorities".
Advocates Act ss.65–66 – admissibility of instruments – requirement to endorse preparer’s name and address – meaning of "registering authority" includes Court Registrars – s.65(2)(c) exception for full‑time employees of limited liability companies – evidential character of exception – premature exclusion of document without affording opportunity to adduce proof.
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31 July 2001 |
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Notice of appeal struck out as abuse of process for failing to collect notified High Court record, with costs.
* Civil procedure – appeal – Notice of Appeal struck out as abuse of process for failure to collect record of proceedings after notification. * Service and proof – adequacy of affidavits to rebut notice and explain delay. * Procedural irregularity – wrong rule cited; court’s inherent power to correct procedural errors. * Costs awarded for abuse of process.
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30 July 2001 |
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The court granted leave to appeal to the Supreme Court, finding the land dispute raised issues of general public importance.
Civil procedure – certificate for leave to appeal – land dispute – limitation of actions – applicant's omission induced by Registrar's advice – right to final appeal.
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30 July 2001 |
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Evidence may displace a preliminary finding of cause of action; plaintiff lacked locus standi to sue alone, appeal dismissed.
Property law – mailo title and locus standi – capacity to sue where multiple registered proprietors; civil procedure – preliminary objection on cause of action is decided on pleaded facts; evidence at trial may displace preliminary rulings; consequence of absence of locus standi on trespass claims.
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25 July 2001 |
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Where the Registrar has given written reasons, the applicant need not make a formal s.190 request before court challenge.
Registration of Titles Act (s.190) – Procedural requirement to require Registrar to set forth reasons – Whether formal application and fee mandatory – Informal written reasons from Registrar sufficient – Striking out for non-compliance inappropriate where reasons already disclosed.
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24 July 2001 |
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A registered mortgagee's title is indefeasible unless fraud by the respondent is pleaded with particulars and strictly proved.
* Land law – Registration of Titles Act – section 184 – Indefeasibility of title; registered mortgagee protected.
* Fraud – Impeachment of registered title – must be pleaded with particulars and strictly proved; burden heavier than balance of probabilities.
* Forgery – A forged power of attorney does not automatically void a registered mortgage absent fraud attributable to the transferee.
* Evidence – Handwriting expert opinion on photocopies and unsworn specimen signatures insufficient to prove fraud by the registered mortgagee.
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24 July 2001 |
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Whether parking‑business operations had commenced (installation/operationalization of metres) for payment of the sale balance.
Contract — Sale agreement — Condition precedent: payment of balance "within four months after commencement of the operations of the business" — construction of general words in context of main object — requirement of actual installation and operationalization of parking metres before balance payable; appellate review of trial judge's contract construction.
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24 July 2001 |
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Whether "commencement of operations" occurred before installation of parking metres — court held it had not; balance not payable.
* Contract interpretation — construction of "commencement of operations" clause — general words limited by main object and surrounding circumstances. * Relationship between separate commercial agreements — sale agreement terms govern payment obligations; third-party operational agreement not to be imported into sale terms. * Payment obligation contingent on installation and operationalization of infrastructure.
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24 July 2001 |
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Appeal was struck out due to lack of authority, absence of necessary leave, and being time-barred.
Company Law – Repossession of expropriated properties – authority to institute legal proceedings – requirement for leave to appeal – time limits for service of appeal – locus standi.
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20 July 2001 |
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A deceased defendant’s legal representative must be joined before trial proceeds if the estate’s interests will be affected.
Civil procedure – Death of a defendant – Order 21 r.4 CPR – Necessity to implead legal representative where reliefs affect deceased’s estate – Cause of action not surviving against surviving defendant – Specific performance of sale and part-payments inseparable.
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2 July 2001 |
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Judgment set aside and retrial ordered because deceased defendant's legal representative was not impleaded.
Civil procedure – Death of a defendant – Order 21 rr.2 & 4 – Necessity to implead legal representative where relief affects deceased’s estate – Suit suspended until impleading – Specific performance and transfer – survival of cause of action – Qualified admissions and judgment on admission.
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2 July 2001 |
| June 2001 |
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Appellants procured lease excluding co‑contributors; appellate court set aside refund award but upheld mesne profits, legal costs and registration of respondents' interest.
Land law – Lease and title – Joint contributors to development – fraud in obtaining lease by omission of co‑owners’ interest; credibility of oral evidence and role of documentary exhibits (Memorandum of Understanding); role and limited effect of criminal acquittal on civil proceedings; remedies – cancellation of title, mesne profits, special damages and registration of co‑owners' interest.
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8 June 2001 |
| May 2001 |
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Criminal law
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29 May 2001 |
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Appeal allowed: confessions wrongly admitted and circumstantial evidence insufficient, convictions quashed.
Evidence – Confession statements – voluntariness under s.25 Evidence Act – trial within a trial – necessity to analyse allegations of torture and produce medical/satisfactory explanation; Evidence – recent possession – identification and proof required to infer theft; Criminal appeal – re-evaluation of evidence by appellate court.
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24 May 2001 |
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Criminal law
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22 May 2001 |
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1 May 2001 |
| April 2001 |
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A competing operator’s licence was lawful; unsigned administrative report had no evidentiary value, fraud unproven, appeal dismissed.
Transport licensing – validity of operator’s licence – unsigned administrative report lacks evidentiary value – Article 126(2)(e) misapplied if used to validate unsigned documents – Traffic and Road Safety Act ss.95(1), 91(2)(e) on consultation and regard to interests – fraud must be strictly pleaded and proved – duty to assess damages but non-assessment not always fatal.
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27 April 2001 |
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Criminal law
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26 April 2001 |
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Compliance with rule 82’s written request requirement prevents striking out a notice of appeal despite failure to prosecute the appeal.
* Civil procedure – Court of Appeal Rules, rule 82 – effect of written application for copy of record within time – whether further duty to follow up preparation of record imposed. * Notice of appeal – failure to prosecute appeal after complying with rule 82 – court’s remedial limits. * Abuse of process – potential for delaying execution versus strict interpretation of procedural rules.
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20 April 2001 |
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Original acquisition and long occupation established the respondent's superior title; appeal dismissed with costs.
Property dispute – caveat removal – title by original acquisition from customary chief – long occupation and development – prescription vs. original title – res judicata (lack of prior records) – appellate re-appraisal of evidence under Rule 31(2).
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11 April 2001 |
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6 April 2001 |
| March 2001 |
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Court allowed extension and revalidated incompetent appeal, holding counsel’s mistake could justify extension of time.
* Civil procedure – extension of time under Court of Appeal Rules (Rule 4) – requirements for sufficient cause; effect of counsel’s mistake.
* Appeal – validation/revalidation of an incompetent pending appeal.
* Affidavit defects – misnaming of deponent – amendability vs. nullity.
* Principles: diligence of party, inordinate delay, errors of counsel may suffice if not gross negligence.
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26 March 2001 |
