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Citation
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Judgment date
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| March 2003 |
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Acquittal where prosecution failed to prove the complainant was under 18, so no prima facie case existed.
Criminal law – Defilement – requirement to prove complainant under 18 – prima facie case – witness inconsistencies – reliability of medical evidence and documentary proof of age – acquittal under S.71(1) T.I.D.
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27 March 2003 |
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Stay of execution refused: applicant failed to show good cause, prospects of success, or irreparable harm.
* Civil procedure – stay of execution pending appeal – requires good cause and special circumstances; * Applicant must show prospects of success on appeal and risk of rendering appeal nugatory or irreparable harm; * Balance of convenience – prejudice to respondent from retention of title and loss of tenants.
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24 March 2003 |
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24 March 2003 |
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Applicant failed to prove defective service or sufficient cause; ex parte decree and execution upheld.
Civil procedure – Order 9 rule 24 – Setting aside ex parte decree – requirement to show lack of service or sufficient cause; affidavits of service – Order 5 rules 15 and 17 – witness naming requirement applies only where a witness exists; stay of execution – requires good cause and special circumstances.
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24 March 2003 |
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The court reduced an excessive instruction fee awarded in mass litigation, holding the taxing officer erred by not differentiating between test case and dependent claims.
Costs – Taxation – Instruction fee – Principles guiding award of instruction fees – Whether taxing officer erred by awarding manifestly excessive instruction fee in mass litigation following a test case – Whether appeal against taxing officer’s award is maintainable under Advocates Act s 61(1).
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21 March 2003 |
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Court reduced a manifestly excessive instruction fee for 1,097 litigants, finding error in principle and substituting a much lower taxed award.
* Civil procedure – Taxation of costs – Appeal under s.61(1) Advocates Act – Party-to-party taxation – Appeal competent and within time.
* Costs – Instruction fee – Whether manifestly excessive – Principles from Premchand Raichand and Simpson Motor Sales applied.
* Assessment – Whether instruction fee should be based on individual awards or gross award and need to consider extent of work and public access to courts.
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21 March 2003 |
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Circumstantial evidence did not prove theft beyond reasonable doubt; conviction, sentence and compensation quashed.
* Criminal law – Theft from vehicle – whether prosecution proved theft beyond reasonable doubt.
* Evidence – Circumstantial evidence – requirement to exclude all reasonable hypotheses of innocence before inferring guilt.
* Burden of proof – remains on prosecution; does not shift to accused absent exceptional circumstances.
* Identification of property – necessity to establish the package seen was the complainant’s.
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20 March 2003 |
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Appellate court dismissed appeal, finding the trial magistrate properly evaluated evidence despite parties’ grudge.
* Criminal law – Appeal against conviction – Whether appellate court should interfere where trial magistrate reasonably evaluated evidence. * Evidence – Credibility and motive – Effect of an outstanding grudge on assessment of guilt.
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20 March 2003 |
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Accused convicted on circumstantial evidence of murder; juvenile status at offence precluded death sentence, detained pending ministerial order.
Criminal law – Murder – Circumstantial evidence – Inferences from conduct and credibility – Common design/acting in concert – Assessment of assessors’ opinions – Age at time of offence and effect under s.104 Trial on Indictments Decree, 1971.
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20 March 2003 |
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An interlocutory application within two years is a prosecutorial step; dismissal under O.15 r.6 CPR set aside and suit reinstated.
* Civil procedure – Revision under S.84 Civil Procedure Act – Setting aside Deputy Registrar’s dismissal under O.15 r.6 CPR for alleged two years’ inactivity.
* Civil procedure – What constitutes a "step" in prosecution – interlocutory application as a step preventing dismissal under O.15 r.6.
* Constitutional principle – Article 126(2)(c) – substantive justice versus procedural irregularity; courts cannot sanction illegality.
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14 March 2003 |
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Stay of execution dismissed where applicant failed to prove good cause, special circumstances, or evidential intention to cross-appeal.
Civil procedure – Stay of execution – Appeal to Court of Appeal – Order 39(3) CPR inapplicable to Court of Appeal appeals; stay requires demonstration of good cause and special circumstances (Somali Democratic Republic v A.S. Treon); mere assertion of intention to cross-appeal without evidential support insufficient; applicant in receivership must adduce evidence of prospects or provide appropriate security.
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14 March 2003 |
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Accused convicted of obtaining public funds by false pretences, forgery and uttering false documents; acquitted on other counts.
Criminal law – Obtaining money by false pretences; Forgery and uttering false documents – proof by documentary, proprietor’s denial and handwriting expert; Abuse of office – requirement of causal or facilitative link to employment.
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13 March 2003 |
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Appellate court substituted common assault conviction and reduced sentence to six months, finding grievous harm unproven and provocation unavailable.
Criminal law – sufficiency of evidence – distinction between grievous harm and common assault – appellate substitution of conviction and sentence; Criminal law – defences – provocation not established.
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12 March 2003 |
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Temporary injunction granted to restrain mortgagee’s sale pending disposal of miscellaneous application challenging prior dismissal.
* Civil procedure – interlocutory injunction – requirements for temporary injunction: preserve status quo, prima facie case with probability of success, irreparable injury; balance of convenience. * Civil Procedure Act – definition of 'suit' – miscellaneous application pending after dismissal of main suit. * Mortgage enforcement – power of sale – interim restraint where purchaser/possession rights contested.
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10 March 2003 |
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Conviction cannot rest on uncorroborated testimony of a child; no prima facie case, accused acquitted and discharged.
* Criminal law – Abduction (Penal Code) – Elements: forcible or deceitful removal and intent to subject victim to harm.
* Evidence – Child witness/corroboration – Trial on Indictments Decree s.38(3) mandates corroboration for prosecution evidence by a child of tender years.
* Criminal procedure – No‑case‑to‑answer/prima facie test – whether evidence is sufficient to call for defence.
* Evidence – Omission as corroboration – absence cannot amount to corroboration where no duty to act exists.
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6 March 2003 |
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5 March 2003 |
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Applicant's HIV‑AIDS condition warranted bail subject to deposit, surety bonds and monthly court reporting.
* Bail – Health considerations (HIV‑AIDS) as a ground for release on bail; imposition of monetary deposit, surety bonds and periodic reporting conditions.
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3 March 2003 |