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Citation
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Judgment date
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| December 2002 |
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Registered title prevailed; defendant’s customary occupation claim failed and plaintiff obtained eviction, damages and costs.
Land law — Registered title (private milo) — s.56 Registration of Titles Act: certificate as exclusive evidence — Trespass to land — Customary kibanja claims — Burden of proof — Constitutional/ Land Act protection for occupants — Remedies: eviction, general damages, costs
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30 December 2002 |
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Administrative disciplinary process breached Article 42; decisions declared void and applicant awarded terminal benefits, general and punitive damages.
Administrative law – disciplinary procedure – natural justice; Constitutional law – Article 42 right to fair administrative hearing – non-derogable; Remedies – declaration of nullity, restitutional terminal benefits, general and punitive damages; Pleadings – general damages need not be specifically pleaded in constitutional redress; Courts’ power to frame issues and grant relief at judgment.
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19 December 2002 |
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Court ordered security for costs where respondent was a foreign company with no known assets or disclosed residence.
Civil procedure — Security for costs — Discretionary remedy to be exercised in special circumstances — Foreign plaintiff with no known assets or disclosed residence creates prima facie case for security — Merits assessed on pleadings and affidavits — Amount fixed by court (bond)
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15 December 2002 |
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A lease expiry after an initial trespass does not defeat the respondent’s cause of action or statutory protection.
Land law – locus standi after lease expiry; Cause of action – trespass committed prior to expiry; Certificate of title – s.56 Registration of Titles Act; Lease renewal pending – rights in transit
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13 December 2002 |
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A wife may petition for divorce on the ground of adultery; discriminatory Divorce Act provisions are void and each party bears their own costs.
Constitutional law – equality in marriage – sections of Divorce Act discriminatory and void to extent inconsistent with Constitution; Adultery – admission in pleadings suffices as proof; Divorce – decree nisi where adultery proved and no collusion or condonation; Children – custody to mother, reasonable access to father; Costs – section 23 discriminatory, apply Civil Procedure Act s.27, each party to bear own costs
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12 December 2002 |
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Constitutional equality enables a wife to petition for divorce on adultery alone; admissions suffice and each party bears own costs.
Family law – Divorce – Adultery as ground for divorce – Constitutional equality requires wife may petition on adultery alone – Pleadings admissions sufficient proof – Condonation/collusion considered – Child welfare, custody and access – Section 23 Divorce Act discriminatory and void; costs to follow Civil Procedure Act; each party to bear own costs
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12 December 2002 |
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Constitutional equality permits a wife to petition for divorce for adultery; discriminatory Divorce Act provisions are void to that extent.
Family law – Divorce – Adultery as ground for divorce – Constitutional equality requires equal grounds and treatment for men and women – Discriminatory provisions of Divorce Act (sections 5, 6, 23) void to extent of inconsistency – Admissions in pleadings as proof – Child welfare, custody and access – Costs discretionarily refused
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12 December 2002 |
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Conviction for rape upheld on evidence; accused's alibi rejected and sentenced to six years' imprisonment.
Criminal law — Rape — Proof of carnal knowledge and absence of consent — Reliance on prosecutrix and witness evidence — Caution on uncorroborated testimony — Alibi rejected — Sentence: six years' imprisonment (first offender; remand considered)
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11 December 2002 |
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Employer vicariously liable for negligent driver; special damages strictly proved and reduced where receipts absent.
Tort — Negligence; vicarious liability of employer for servant’s driving; assessment of damages — special damages require strict proof and must be pleaded; reduction for unproven repair costs; default judgment under Order 9 r.6; award of interest and costs
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3 December 2002 |
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Whether the prosecution proved beyond reasonable doubt that the accused unlawfully killed the deceased despite his alibi and robbery claim.
Criminal law – Murder – Elements: death, unlawful act, malice aforethought – Eyewitness identification and credibility – Alibi and false report of robbery – Rejection of provocation and self-defence – Death sentence
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2 December 2002 |
| November 2002 |
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Criminal law
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15 November 2002 |
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Robbery failed for lack of proof of theft; identification and grievous harm established, conviction substituted to burglary.
Criminal law — robbery — elements: theft, use of deadly weapon, participation; single-witness identification — reliability under favourable conditions; alibi — prosecution to negative; conviction for alternative offence (burglary) when theft not proved
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15 November 2002 |
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Confession admissible but conviction unsafe where victim's age and intercourse were not proved beyond reasonable doubt.
Criminal law – Defilement (s.123(1)) – elements: intercourse, victim under 18, accused's participation – Admissibility of confession – compliance with CJ circular on vernacular statements – retracted confession and need for corroboration – proof of age and calling material witness
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15 November 2002 |
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Failure to extract the formal order before filing an appeal renders the appeal incompetent and liable to be struck out.
Civil procedure — Appeals — Requirement to extract and attach formal decree or order before filing appeal — Failure to extract is a jurisdictional defect — Order 18 r.7 CPR — Article 126(2)(e) (avoidance of technicalities) does not cure jurisdictional defect — Appeal struck out with costs
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15 November 2002 |
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Summary dismissal was wrongful where the union agreement required suspension pending investigation; awards of special and general damages, interest and costs.
[Employment law] Summary dismissal; Collective agreement — suspension pending investigation (clause 25(iii)) v summary dismissal clause (14(a)(iii)); audi alteram partem; remedies — special and general damages; interest and costs; stay pending criminal proceedings rejected
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14 November 2002 |
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A plaint filed by a firm whose sole proprietor lacked a practising certificate is invalid, rendering subsequent proceedings incurably defective.
Civil procedure — Validity of pleadings — Documents filed by an advocate without a valid practising certificate are invalid; plaint invalidates subsequent proceedings; court may adjudicate late-raised points of law; party may apply for leave to adduce rebuttal evidence
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12 November 2002 |
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Whether defilement was proved beyond reasonable doubt by child testimony corroborated by medical evidence and witness identification.
Criminal law – Defilement – child of tender years – competency and voir dire for child witnesses – medical corroboration of sexual intercourse and force – identity evidence and burden of proof beyond reasonable doubt – assessors' opinion
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12 November 2002 |
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Licence for access exceeded by defendants; breach proved and modest damages awarded due to limited proof of loss.
Contract — licence for access — whether conduct exceeded licence (access v. access road) — breach established; Damages — requirement to prove quantum, competency of expert valuation and proof of loss; Limitation/Laches — not shown to bar claim.
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11 November 2002 |
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Accused acquitted of defilement for lack of proven penetration but convicted of attempted defilement and sentenced to 14 years.
Criminal law – Defilement v. attempted defilement – Penetration as essential element – Credibility of child complainant – Venereal disease not conclusive proof of intercourse – Identification and failure to cross-examine
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11 November 2002 |
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Failure to comply with pleading requirements and invoking the wrong procedure led to dismissal with costs.
Civil Procedure — Notice of Motion as pleading — Order VI r1(a) — mandatory requirement for summary of evidence, witnesses, documents and authorities — consequences of non‑compliance — Section 101 Civil Procedure Act inapplicable where Order 9 r24 applies — dismissal for procedural non‑compliance and lack of explanation
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1 November 2002 |
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Criminal law
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1 November 2002 |
| October 2002 |
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Recall by the seconding employer terminates seconded employment; claims for arrears lie against the seconding agency.
Secondment — recall by seconding employer terminates seconded employment; lack of written notice by host employer does not sustain a claim for back pay against host; remedy lies against seconding agency
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29 October 2002 |
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Whether sale under an allegedly revoked or unregistered power of attorney is void; court upheld the sale as valid.
Property law – power of attorney – revocation and registration; Expropriated Properties Act and Registration of Titles Act – effect of non-registration on validity of sale and transfer; agency and vicarious liability; fraud and impeachment of title
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29 October 2002 |
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A customary heir without probate/letters of administration cannot validly sell a deceased's registered land; sale is void, refund ordered.
Succession and probate — Requirement of probate or letters of administration (Succession Act ss.187,190) — Customary heir's capacity to sell registered land — Void sale where no grant — Purchaser's remedy: refund with interest — Trial court's improper admission/proof of will outside probate proceedings
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29 October 2002 |
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Prosecution proved intercourse and participation but failed to prove lack of consent; accused acquitted due to credibility and corroboration defects.
Criminal law — Rape: elements (sexual intercourse, lack of consent, accused's participation) — Corroboration of complainant — Credibility and inconsistencies — Inconclusive medical evidence — Assessors' advice to acquit
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24 October 2002 |
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Acquittal where prosecution failed to prove robbery elements, weapon use, and witness credibility; seized property returned.
Criminal law — Robbery: ingredients (theft, use of deadly weapon, participation) — necessity to produce/describe weapon and provide expert proof — credibility of witnesses; contradictions and delayed reporting — insufficiency of unconnected circumstantial evidence — acquittal and restitution of property
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24 October 2002 |
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Applicants retrenched are entitled to pension under the Scheme if qualifying; retrenchment packages did not extinguish pension rights.
Employment law – pension entitlement under employer’s standing instructions – eligibility conditions, discretionary withholding for misconduct, retrenchment packages do not extinguish existing pension rights absent clear agreement
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24 October 2002 |
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Court convicted the accused of defilement, rejecting the special corroboration rule as discriminatory and upholding proof beyond reasonable doubt.
Criminal law – Defilement – Proof beyond reasonable doubt of age, intercourse and identity; Evidence Act s.132 – single witness sufficiency; Judicial caution in sexual offences: uncorroborated-complainant rule held discriminatory and inapplicable; Constitutional and CEDAW obligations against sex discrimination
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19 October 2002 |
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Whether the judge was biased and the legal effect of an accused discharging counsel mid-trial on right to representation.
Judicial impartiality — bias tests (real likelihood and reasonable suspicion) — judge's power to refuse improper questions — Evidence Act ss.143,153 on impeaching witnesses — right to counsel and self-representation; discharge of counsel mid-trial
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18 October 2002 |
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Application to set aside consent order dismissed for lack of new evidence and improper procedural basis.
Civil procedure — Review jurisdiction: Order 42 vs Order 48; Setting aside consent orders — requirement of new, convincing evidence; Unrebutted affidavit in reply — evidential weight; Satisfaction/discharge of summary decree
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15 October 2002 |
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Consent compromise set aside where advocates and negotiator lacked company authority to settle the decree.
Civil procedure — consent/compromise orders — corporate authority to instruct advocates — agency and ostensible authority — invalid settlement where company authorisation lacking
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14 October 2002 |
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Revocation of an NGO’s registration without affording a hearing breaches natural justice and warrants reinstatement.
Administrative law – Natural justice – Right to be heard – Revocation of NGO registration without hearing – Judicial review under Section 38 Judicature Statute and Article 42 Constitution – Decision null and void – Reinstatement as effective redress
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14 October 2002 |
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A debt‑collection fee agreement lacking the statutory notary certificate is unenforceable; taxation appeal dismissed.
Advocates Act (ss.47,49,50) – fee agreements – statutory requirement for written, signed agreement with notary certificate and copy to Law Council – non-compliance renders agreement unenforceable; debt-collection agreements – whether cover contentious work; taxation of advocate/client bills.
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3 October 2002 |
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A remuneration agreement lacking the required notary certificate and Law Council notification is unenforceable; applicant’s taxation claim dismissed.
Advocates Act (Sections 47, 49, 50) – validity of remuneration agreements – requirement of writing, signature and notary public certificate; copy to Law Council under Decree 1(c)
Contract/enforceability – debt collection agreement lacking required notarisation is unenforceable. Civil procedure – taxation of advocate/client bills – where no enforceable agreement exists, claim to taxation fails. Renewal by conduct – letters and conduct do not cure statutory formal defects in advocate remuneration agreements
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3 October 2002 |
| September 2002 |
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Carrier strictly liable for lost checked baggage under Warsaw Convention but liability limited to US$20/kg absent special declaration.
Carriage by air — Warsaw Convention: Article 18(1) strict liability for loss of registered baggage; Article 22 limitation to US$20 per kg absent special declaration; proof of check-in and baggage tags; damages for inconvenience; court may decide under Order 15(4) CPR where party defaults
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25 September 2002 |
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Plaintiff entitled to rent arrears and water charges under a valid tenancy addendum; defendant not liable for post-lease holding-over.
Contract/tenancy — validity and effect of addendum increasing rent; Rent arrears recoverable; Holding-over — requirement to prove governmental authorization/acquiescence; Tenant’s covenant to pay water charges — apportionment and exclusion of pre-existing arrears; Damages and interest; Costs awarded
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20 September 2002 |
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Equal contributions found; no proven denial of use; both claim and counterclaim dismissed for lack of proof.
Sale of motor vehicle – contribution to purchase – possession held by third parties – transfer of vehicle (TIN/PIN issue) – burden to plead and strictly prove special damages – need for documentary evidence for counterclaim
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18 September 2002 |
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Plaintiffs failed to prove unlawful eviction; owner lawfully re-entered premises and suit dismissed with costs.
Landlord and tenant — unlawful eviction — burden of proof on alleging party; absentee witness credibility — lawful re-entry by owner; dismissal with costs
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13 September 2002 |
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Civil Procedure
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12 September 2002 |
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Court convicted three accused of murder, holding identification reliable, malice established and joint common purpose proven.
Criminal law — Murder — Elements (death, unlawful act, malice aforethought, participation); Identification evidence — proximity, light, familiarity, caution; Common purpose — joint liability (s.22 Penal Code); Evidence Act s.155 — non-production of prior statement not necessarily fatal; Ocular inspection corroboration
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10 September 2002 |
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A magistrate must allow an objector to adduce evidence under Order 19; failure to do so is a material irregularity.
Civil procedure – Revisional jurisdiction s.84 Civil Procedure Act – Distinct from review and appeal; substantive justice under Article 126(2)(e)
Order 19
CPR – objector proceedings – Order 19 r.56 requires objector to be allowed to adduce evidence of interest; failure to hear evidence is material irregularity causing injustice
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10 September 2002 |
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Appellant failed to prove root of title; court upheld lower decision that seller could not pass good title.
Land law – proof of root of title – specific performance – transfer form incomplete and unregistered – purchaser must trace title to registered proprietor; possession and registrable interests support competing claim; lease extensions and local council letters insufficient to establish good title
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5 September 2002 |
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Contract Law|Breach of Contract
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5 September 2002 |
| August 2002 |
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Civil Procedure
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28 August 2002 |
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Contract Law
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22 August 2002 |
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Criminal law
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21 August 2002 |
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Criminal law
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21 August 2002 |
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Whether prosecution proved defilement of a minor; accused's extra‑judicial confession corroborated the complainant's evidence.
Defilement – proof of age via relative testimony and medical report – corroboration of single complainant by accused's extra‑judicial confession – conviction and sentence with remand credit
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21 August 2002 |
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Criminal law
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20 August 2002 |
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Criminal law
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20 August 2002 |