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Citation
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Judgment date
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| December 2008 |
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Reinstatement is contractual; malicious prosecution claim time-barred; contract claim for arrears may proceed.
* Limitation law – Scheduled corporations: actions founded on tort must be brought within two years; contract actions governed by six-year limitation. * Employment law – Reinstatement after acquittal is contractual, not a separate tort. * Pleadings – Defamation not substantively pleaded cannot be pursued. * Civil procedure – Malicious prosecution claim time-barred and struck out under O.7 r.11(d).
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21 December 2008 |
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The respondent repudiated the contract; the applicant awarded general damages; the respondent's counter-claim dismissed.
Contract law – breach and repudiation; supply and installation contracts; Memorandum of Understanding as variation of written contract; failure to perform within reasonable time and agreed schedule; defective goods and remedy; assessment of special versus general damages; counter-claim and specific performance where claimant repudiated contract.
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21 December 2008 |
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Leave for judicial review and a stay were granted over IGG recommendations amid jurisdiction and fair-hearing concerns.
• Administrative law – Judicial review – Leave required under O.47A CPR; • Inspectorate of Government – Jurisdictional limits – Whether IGG may order cancellation of academic awards and removal from public service; • Natural justice – Right to access original records and fair hearing; • Interim relief – Stay of implementation pending review.
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18 December 2008 |
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Evidence supported a corruption conviction, but the High Court lacked statutory power to convict and sentence after acquittal.
Corruption — Elements: public officer, receipt of gratification, corrupt inducement; Section 10 presumption of corruption and burden shift; admissibility and weight of caution statement; Appellate powers on acquittals — limits of s.35 Criminal Procedure Code; Court of Appeal s.132 power to reverse acquittals and enter conviction/sentence; Inspectorate of Government’s locus to appeal under s.14(9).
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16 December 2008 |
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Applicant’s plaint failed to disclose a cause of action; amendment could not cure the nullity and the application was dismissed.
Civil procedure – withdrawal of suit – Order 25 r.1(2) – leave required where matter set down for hearing; Service – Order 12 r.3(2) – short, non‑prejudicial delay excused; Pleadings – Order 7 r.1(e), r.11(a) – cause of action must be pleaded; Auto Garage test applied; A nullity plaint cannot be cured by amendment.
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15 December 2008 |
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Preliminary objections improperly raised factual disputes; plaint discloses a cause of action and objections are disallowed.
Civil procedure – plaint competence – representative suits and written authority (Order 1 r.8, r.12) – joinder of plaintiffs; Cause of action – plaint judged on its face assuming pleaded facts true; Preliminary objections – improper where resolution requires factual determination; Defamation – justification and fair comment cannot be decided on preliminary objection.
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9 December 2008 |
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Claim of right fails where registered proprietor unlawfully and wilfully destroys occupier’s buildings; conviction and compensation affirmed.
Criminal law – malicious damage to property – unlawful and wilful demolition of occupier’s buildings without court order; Circumstantial evidence implicating registered proprietor; Claim of right (s.7 Penal Code) inapplicable where multiple interests and fraud; Compensation ordered under criminal proceedings (s.197 Magistrates’ Courts Act; s.34(2)(b) Crim. Proc. Code).
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1 December 2008 |
| November 2008 |
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Termination without communicated probation extension was unlawful; plaintiff awarded two months' pay and terminal benefits.
Employment law – wrongful termination – probationary period – failure to communicate probation extension – entitlement to notice/pay in lieu under Employment Act s58 and employer policy – unpleaded deductions and terminal benefits.
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27 November 2008 |
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An editor was held liable for a defamatory radio broadcast; justification and fair comment failed, damages awarded.
Defamation – broadcast publication – editor's liability for defamatory radio broadcast; defences of justification and fair comment; limitation period; damages for injury to reputation.
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27 November 2008 |
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Appeal against award of special damages dismissed; magistrate properly evaluated evidence and adjusted pleaded amounts.
Appeal — Evaluation of evidence — Special damages — Consistency between pleaded particulars and award — Magistrate's discretion to reduce pleaded amounts based on evidence.
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27 November 2008 |
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Applicant awarded unpaid performance bond, general damages and interest for respondent's breach of contract.
Contract law – performance bond – failure to refund on completion constitutes breach; entitlement to unpaid bond, general damages for loss of use and inconvenience, and interest to compensate borrowing costs; uncontested evidence in default hearing establishes claim when unrefuted.
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27 November 2008 |
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State agents unlawfully seized the applicant's livestock; court awarded compensation, exemplary damages, interest and costs.
Property seizure by state agents; unlawful seizure of livestock; Public Health Act (s.57(k), ss.59–64) procedural requirements; failure of state to adduce evidence; remedies — compensatory and exemplary damages; interest and costs.
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27 November 2008 |
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Plaintiffs recover the pleaded unpaid purchase price; limited to pleaded amount, awarded commercial interest and costs.
* Contract law – breach for non-delivery of goods – recovery of paid purchase price balance; * Civil procedure – judgment in defendant’s absence where served; * Pleadings – claim limited to amount pleaded, plaint not amended; * Damages – no general damages without evidence; * Interest – award of commercial interest from date performance due.
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27 November 2008 |
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Bail refused where accused face murder charges, investigations ongoing and risk of interference due to applicants' influence.
Bail – Murder charge – Ongoing investigations – Risk of interference by influential accused – Balancing right to bail against integrity of investigations and public interest.
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27 November 2008 |
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Court discontinued application, set aside ex parte taxation and remitted bill for inter partes taxation due to procedural irregularities.
Civil procedure – leave to appeal out of time – taxation of advocate’s bill – ex parte taxation – service requirements – allegations of fraud/forgery must be pleaded and proved – inherent jurisdiction to prevent abuse of process – setting aside impugned orders and remitting for inter partes taxation.
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26 November 2008 |
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An interim injunction binds only parties; non-party external recruitment agencies are not restrained by it unless court orders otherwise.
Civil procedure – Interim injunctions – Inter partes operation of interlocutory orders – Review/variation to exclude non-parties; Administrative misapplication by Ministry to be corrected.
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23 November 2008 |
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Decree Nisi granted for irretrievable breakdown; petitioner ordered to pay respondent for property share, no alimony awarded.
Family law – dissolution of marriage – irretrievable breakdown – Decree Nisi – division of matrimonial property by payment – vesting of ownership on payment – no alimony – mutual restraining order – costs each party.
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20 November 2008 |
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Accused convicted of murder where circumstantial evidence and his caution statement negated self-defence.
Criminal law – Murder – Elements: death, unlawful act, malice aforethought, participation; Circumstantial evidence – moral certainty; Charge and caution statement – admissibility and probative value; Self‑defence – burden to prove immediacy and proportionality; Identification evidence and failure to tender peripheral exhibits.
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20 November 2008 |
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The High Court lacks jurisdiction to extend time for filing a notice of appeal; the Court of Appeal Rules govern such extensions.
Appeals – Time for lodging notice of appeal – Court of Appeal Rules (rule 76 and rule 5) govern filing periods and extensions; High Court lacks concurrent jurisdiction to extend time for notices of appeal; Procedure where appeal lies only with leave – apply first to the court which made the order; Misplaced applications to wrong forum struck out rather than decided on merits.
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19 November 2008 |
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Manufacturer and distributor held liable for children's illness from rancid margarine due to latent defect and negligent packaging choice.
Product liability – manufacturer’s duty of care to ultimate consumer – latent defect (oxidation/rancidity) – negligence in relying on packaging rather than antioxidants – distributor liable by implied warranty – retailer’s non-joinder immaterial where no evidence of retailer negligence.
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18 November 2008 |
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A suit against a defendant dissolved by statute is incompetent and must be dismissed as being against a non-existent party.
Civil procedure – Suit against non-existent party – Effect of statutory dissolution of a corporate/statutory body – Binding precedent of Court of Appeal – Dismissal under Order 6 r.29 Civil Procedure Act – No costs against non-existent entity – Leave to appeal granted.
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16 November 2008 |
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A company cannot sue on a pre‑incorporation electricity contract; distributor liable in negligence for wrongful 35‑day disconnection, awarded general damages.
Contract law — pre‑incorporation contracts and privity — a company cannot sue on a contract made before its incorporation absent a new contract or valid assignment; Tort — negligence — duty of care to foreseeable commercial users and liability for wrongful prolonged disconnection; Damages — special damages must be strictly proved; general damages available for business paralysis caused by wrongful disconnection.
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16 November 2008 |
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A consent withdrawal is binding and may only be impugned by fresh suit with full proof of fraud or duress, not by motion.
Civil procedure – consent withdrawal – setting aside consent decree – allegations of duress/fraud require a fresh suit and full proof, not motion proceedings; consent orders binding unless vitiated by fraud, mistake or illegality.
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16 November 2008 |
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Soldiers' unlawful arrest and torture held unlawful; State vicariously liable and ordered to pay general and exemplary damages.
Unlawful arrest and detention — soldiers lacking statutory power to arrest civilians without warrant; detention exceeding 48 hours; assault and dehumanising detention; soldiers acted within scope of employment in seeking military weapon; State vicarious liability; award of general and exemplary damages with interest and costs.
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13 November 2008 |
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Grant of letters obtained by false widowhood revoked; subsequent estate transfers declared void and registrations cancelled.
Succession Act s.234 – revocation of grant of Letters of Administration – grant obtained by false representation of widowhood and failure to exhibit inventory; Property law – transfer tainted by discrepancy in declared consideration and illegality – bona fide purchaser doctrine; Fraud in procurement of probate/administration and effect on subsequent transfers; Remedies: revocation, declaration of nullity, cancellation of registration, injunction, costs.
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12 November 2008 |
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Court orders cross-examination of applicant’s deponents and production of voucher books pending challenge to ex-parte taxation.
Civil procedure – interlocutory orders – cross-examination on affidavit evidence – production of documents – handwriting expert evidence – challenge to ex-parte taxation of advocate-client bill.
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9 November 2008 |
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Court stayed execution of an ex parte taxation-based garnishee and attachment pending determination of the applicant's leave-to-appeal application.
* Civil procedure – stay of execution – O.22 r.26 – pending suit defined to include pending application for leave to appeal out of time.
* Taxation – advocate-client bill taxed ex parte by Registrar – challenge to such taxation requires High Court review; Registrar lacks power to review his/her own taxation.
* Procedure – misjoinder of interim and final reliefs not automatically fatal where no jurisdictional defect or prejudice; courts adopt liberal approach where fundamental rights at stake.
* Security – ordering security is discretionary under O.22 r.26; O.43 r.4 (security on appeal) inapplicable here.
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9 November 2008 |
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Application to reinstate a suit dismissed for non‑appearance dismissed for inexcusable delay and futility of relief.
Civil procedure – dismissal for non‑appearance (Order 9 rule 22) – application to set aside dismissal (Order 9 rule 23) – sufficient cause and diligence – delay and abuse of process – Judicature (Amendment) Act 2002 s.4 – practical futility of reinstatement – costs.
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9 November 2008 |
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A debtor’s bankruptcy petition was refused for failure to file the mandatory statement of affairs with the official receiver.
Bankruptcy law – Debtor’s petition – Requirement to file verified statement of affairs with the official receiver under Section 15 – Mandatory compliance and timing under Section 7 as a condition precedent to granting a receiving order.
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4 November 2008 |
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Statutory notice need not include detailed negligence particulars; the plaint disclosed a cause of action and may be amended.
Tort – Administrative liability – Suit against Attorney General – statutory notice sufficiency; Civil procedure – Pleadings – whether plaint discloses cause of action; vicarious liability – pleading capacity and particulars; amendment of defective pleadings.
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4 November 2008 |
| October 2008 |
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Plaintiff entitled to unpaid salary and allowances; defendant’s counter-claim for misappropriation unproven.
Employment law — unpaid salary and allowances — credibility of witness evidence and documentary payment vouchers — burden of proof on counter-claim for conversion and money had and received — interest and costs.
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30 October 2008 |
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Whether the respondent is vicariously liable for its employee’s negligence, reduced by the applicant’s contributory negligence.
Tort – Negligence; vicarious liability of employer for employee driving in course of employment; contributory negligence and 50% apportionment; assessment of loss of dependency and loss of expectation of life; damages apportionment to widow and minor children; interest and costs.
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30 October 2008 |
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Appellant failed to prove exclusive ownership; land held to be communal grazing land and appeal dismissed.
* Land law – proof of ownership – burden of proof under section 101 Evidence Act – necessity to prove boundaries, features, and exclusive occupation.
* Communal land – characterization of land as communal grazing land based on historic use by multiple kraals.
* Adverse/long occupation – potential to create bona fide occupancy under section 29 Land Act (cap. 227).
* Costs – discretion under section 27(1) Civil Procedure Act and requirement for reasons, but maintenance of tribunal order where fair.
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30 October 2008 |
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Appellate court affirmed malicious damage convictions, rejected alibi and grudge claims, and corrected an illegal omnibus sentence.
Criminal law – Malicious damage to property v. arson – jurisdiction of Magistrate Grade I; Credibility – alleged grudge and eyewitness identification among relatives; Sentencing – omnibus sentence illegal and variation by appellate court; Procedural compliance – s.128 Magistrates Courts Act and miscarriage of justice.
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30 October 2008 |
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Failure to swear witnesses and to inspect locus in quo rendered the trial null, warranting retrial and a status‑quo order.
Evidence — failure to administer oath to most witnesses — renders trial proceedings nullity; Civil procedure — locus in quo inspection necessary in boundary/trespass disputes involving prior demarcation; Remedy — setting aside judgment and ordering retrial de novo; Costs — each party to bear own costs; Interim relief — status quo order pending retrial.
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30 October 2008 |
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28 October 2008 |
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Accused convicted and sentenced to death for premeditated murder motivated by alleged witchcraft; alibi rejected.
Criminal law – Murder – Eyewitness identification and minor inconsistencies – Alibi – Circumstantial evidence and motive (alleged witchcraft) – Malice aforethought established by use of panga to inflict fatal neck injuries – Common intention – Death sentence.
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20 October 2008 |
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Accused convicted of rape on confession and corroboration; sentenced to ten years’ imprisonment.
Criminal law – Rape: elements of offence (penetration, lack of consent, identification) – confession and corroboration – victim’s immediate reporting as evidence of non-consent – sentencing: mitigation for first offender; reduction from maximum penalty.
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16 October 2008 |
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Applicant granted leave for judicial review due to prima facie breach of natural justice and questions over petition’s validity.
Judicial review — leave to apply — prima facie test for leave; Natural justice — duty to serve and give notice before council considers removal of public officer; Local Government procedure — required signatures under s.68(1) and rule 107(5); Prematurity — reliance on unconsidered audit reports; Locus standi — effect of councillor’s suspension on right to lodge petition.
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14 October 2008 |
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Defective general denials in defence struck out, but plaint rejected as barred by s.176 RTA; no costs ordered.
Civil procedure – pleadings – Order 6 r.8 & r.10 CPR – general denials and evasive pleas insufficient; Order 6 r.30 – striking out defective defence; Registration of Titles Act s.176 – certificate of title bars actions challenging registered proprietor’s possession except statutorily permitted cases; plaint rejection under Order 6 r.11(d).
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13 October 2008 |
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Victim’s credible testimony plus medical and lab evidence proved aggravated defilement of a 13‑year‑old; accused convicted and jailed.
Criminal law – Aggravated defilement – age of victim under 14; child witness credibility and corroboration; medical and laboratory evidence (ruptured hymen, syphilis) as corroboration; slight penetration sufficient; sentencing of first-time young offender.
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13 October 2008 |
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Bail pending appeal granted where non-violent first offender faced appeal delay and low flight risk.
Criminal procedure – Bail pending appeal – Factors to consider (character, first offender, non-violence, prospects of success, delay in hearing appeal, post-conviction conduct) – Delay and likely remission may justify release – Recognisance and sureties ordered.
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10 October 2008 |
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Applicant granted leave for judicial review after licence suspension without hearing breached natural justice and constitutional rights.
Administrative law – Judicial review – Leave to apply – Suspension of business licence without hearing – Breach of natural justice (Article 28) – Right to carry on lawful occupation (Article 40(2)) – Allegation of improper/monopolistic motive warranting investigation.
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3 October 2008 |
| September 2008 |
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Prolonged interdiction without reinstatement after exoneration amounted to unlawful dismissal and was not time‑barred.
Public employment – interdiction and prolonged exclusion – unlawful termination where no dismissal, notice or disciplinary process followed; Limitation – cause of action arises on communication of police exoneration; Remedies – lost salary, notice pay, pension-related entitlements, general damages, interest and costs.
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30 September 2008 |
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Continuous trespass is not time‑barred; trial court erred by dismissing for limitation and not visiting locus in quo.
Land law – Trespass – Continuous tort of trespass prevents plain limitation defence; Limitation Act – continuous trespass not time‑barred; Civil procedure – duty to inspect locus in quo where necessary; Judicial notice – insecurity (1986–1993) not dispositive where cause is continuous trespass.
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30 September 2008 |
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Substituted service within jurisdiction was ineffective given defendants' foreign residence; the resulting default judgment and sale were void.
* Civil procedure – execution and sale in execution – compliance with O.22 rr.62–65 (officer of court, advertisement and minimum notice period) – failure to advertise afresh and sale within prescribed period renders sale void. * Civil procedure – sale of immovable property – mandatory lodging of duplicate certificate of title under section 48 of the Civil Procedure Act before sale. * Service of process – substituted service within jurisdiction – ineffective where defendants are resident abroad – default judgment founded on such service is a nullity and may be set aside. * Remedies – irregular execution treated as trespass; court empowered to declare sale and judgment void and order restoration/refund.
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29 September 2008 |
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Inspector General’s summary dismissal while appeal pending was ultra vires; only Police Council may dismiss lower‑rank officers.
Police Act s.58 – criminal proceedings and appeals take precedence over disciplinary proceedings; dismissal of police officers below certain rank is by Police Council; Inspector General lacks unilateral power to dismiss; dismissal is not automatic upon conviction; prerogative remedies (certiorari and prohibition) available to quash unlawful administrative dismissal.
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26 September 2008 |
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Accused convicted of murder on reliable eyewitness identification, malice aforethought and common intention; sentenced to death.
Criminal law – Murder – ingredients: death, malice aforethought, unlawfulness, identification; Malice inferred from weapon, number and location of injuries; Identification by eyewitnesses—daylight, proximity, prior acquaintance; Common intention (s.20 Penal Code) – joint liability for killing; Non-production of investigating officers or weapon exhibits not fatal where other credible evidence exists; Alibi defence – fails if positive identification unshaken.
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26 September 2008 |
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Appellants proved family ownership and notice; purchaser failed to prove bona fide purchase; appeal allowed, suit dismissed.
Land law – family land and possession – continuous occupation, graves and houses as indicia of family ownership; Evidence – admissibility of post‑event written acknowledgment (DEXH1) and proper evaluation; Property – bona fide purchaser for value without notice – burden on purchaser to prove lack of notice; Civil procedure – appraisal of locus in quo visit and re‑evaluation on appeal.
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24 September 2008 |
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Plaintiff entitled to principal and contractual interest; excessive claimed interest disallowed and foreclosure refused.
* Contract law – loan agreement – existence and terms of loan; recovery limited to pleaded and proved special damages. * Damages – special damages must be pleaded and strictly proved; excess contractual interest disallowed absent penalty clause. * Interest – discretionary award; 25% p.a. from breach date awarded on proved sum. * Property law – equitable mortgage and caveat; foreclosure not ordered despite deposit of title.
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22 September 2008 |