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20 judgments found.
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February 2009
The applicant's hiding or fear of arrest did not suspend limitation; the respondent successfully defended the claim as time‑barred.
Limitation — Tort (false imprisonment/unlawful detention) — Whether hiding or fear of reprisal constitutes legal disability suspending limitation period — Civil Procedure and Limitation (Miscellaneous Provisions) Act (Act 20 of 1969) application
Civil procedure — Pleadings — Departure from pleaded case at trial — A plaintiff must prove the case as pleaded or amend pleadings before adducing inconsistent evidence
26 February 2009
Grant revoked for fraudulently concealing heirs; court appointed administrators and ordered a full account.
Succession law — Administration of estate — Revocation of letters of administration obtained by false suggestion — Succession Act s 234
Evidence — Testamentary documents — Admissibility requires attesting witness or proven exception — Evidence Act/Succession Act requirements
Probate practice — Mismanagement and accounting — Administrator’s duty not to distribute or dispose improperly and to render a true inventory and account
25 February 2009
Plaintiff’s appointment declared a nullity due to forged PSC documents; payroll removal lawful and reliefs denied.
Public Service — Appointment validity — Forged PSC minutes and corrigenda — Effect of forgery on appointment validity
Employment law — Payroll removal — Effect of null appointment — No entitlement to reinstatement or benefits
Evidence — Documentary and circumstantial evidence — Burden of proof and onus to establish authenticity of documents
24 February 2009
Prosecution failed to establish a prima facie case of defilement due to insufficient proof identifying the accused.
Criminal law — Sexual offences — Defilement — Sufficiency of evidence and elements required under s.130 Penal Code Act
Criminal procedure — Trial on Indictments s.73 — Prima facie standard at close of prosecution case; burden on prosecution
Evidence — Medical timing, witness contradictions and non‑attendance of material witnesses — Impact on establishment of identity/ culpa
24 February 2009
Letters of administration based on a false intestacy allegation can be revoked; valid probate prevails.
Succession law — Probate v. letters of administration — Revocation of letters obtained on false allegation of intestacy — Succession Act s 234(2)(c)
Evidence — Testamentary capacity — Burden on challenger to prove will invalid; absence of evidence defeats challenge
23 February 2009
Partial non‑compliance with conditional orders to set aside an ex‑parte judgment permits execution to proceed.
Civil procedure
— Setting aside ex‑parte judgment — Conditions precedent to vacatur — Compliance and proof of non‑compliance
— Execution of decree — Effect of failing to comply with conditional orders — Execution continues
19 February 2009
Court overruled forgery objection and held it had jurisdiction to tax the advocate–client bill of costs.
Civil procedure — Taxation of costs — Advocate–Client bill of costs — Whether taxation is permissible where respondent alleges forgery of a payment voucher — Allegation must be proved and does not automatically oust jurisdiction
Advocates Act — Procedure to recover advocate’s costs — Section 57 — Suit to recover costs subject to statutory conditions; those conditions do not bar taxation where forgery is alleged but unproven
17 February 2009
Whether retrenchment benefits must be calculated using the salary on the effective retrenchment date.
Employment law — Redundancy/retrenchment — Calculation of retrenchment benefits — Salary on effective date of retrenchment
Evidence — Documentary evidence — Admitted exhibits and failure to cross‑examine — Effect of not challenging contents
16 February 2009
Lawful arrest but unconstitutional detention over 48 hours; State held liable and damages awarded.
Constitutional law — Arrest and detention — Lawful arrest vs. unlawful detention beyond 48 hours under Article 23(4) of the Constitution
Public law / Tort — State liability — Government liable in tort for acts of police officers carried out in course of employment under Government Proceedings Act
Criminal procedure / Police Act — Powers of arrest — Reasonable cause to suspect an arrestable offence authorises warrantless arrest (Police Act)
12 February 2009
A director’s role in company correspondence does not, without clear personal guarantee, create personal liability for company debts.
Civil law
— Contract/debt — Director’s personal liability for company debts — Whether a director’s signature on company correspondence creates a personal guarantee
— Remedies — Interest and general damages — Award of agreed contractual interest and compensatory general damages with post-judgment interest
12 February 2009
The court found the defendant vicariously liable for the driver's negligence, awarding damages to the injured passengers.
Tort Law — Negligence — Vicarious Liability — Public Service Vehicle — Scope of Employment — Inevitable Accident Defense.
9 February 2009
Challenge to the Minister’s repossession was time‑barred; cancellation for non‑payment lawful; counterclaim succeeds with eviction and damages.
Property law — Sale of expropriated property — Time of the essence in sale agreement; failure to pay balance — Lawful cancellation and repossession
Civil procedure — Limitation — Appeal/challenge to Minister’s repossession certificate under Expropriated Properties Act s15(1) — 30‑day time bar
Remedies — Possession and compensation — Eviction, general damages and mesne profits for denial of possession
8 February 2009
Application to reinstate suit dismissed under Order 17 r.6 refused; applicant’s failure to follow prescribed procedure fatal.
Civil procedure — Dismissal for want of prosecution (Order 17 r.6) — Remedy is to commence fresh suit if not time-barred — Inherent jurisdiction/Section 98 and Order 52 cannot be used to circumvent Order 17 — Counsel’s negligence visited on client — Reinstatement refused.
6 February 2009
A tribunal's finding of no prima facie case binds administrative bodies; the applicant was unlawfully retired and awarded statutory remedies.
Administrative law — Local government removal procedure — Whether District Service Commission may retire a CAO after Tribunal finds no prima facie case
Constitutional/public service — Protection of public officers — Application of Article 173 and requirement for just cause and fair hearing
Remedies — Statutory benefits on unlawful termination — Entitlement under section 61(2) Cap.243 (formerly s.62(2) Act No.1 of 1997)
5 February 2009
Consignment notes are prima facie evidence of carriage; carrier must explain shortages or be liable for loss.
Contract law — Carriage of goods — Consignment note as prima facie evidence of contract and cargo particulars — Evidence Act ss 91–92
Evidence — Burden of proof — Proof of shortage shifts burden to carrier to explain loss — Evidence Act s 106
Remedies — Damages — Claimant entitled to value of lost goods and general damages for breach of carriage contract
5 February 2009
The plaintiff recovered damages from the employer for wrongful death caused by its negligent driver; first defendant dismissed for non‑service.
Civil law — Tort — Wrongful death — Employer liability for negligent driver
Damages — Assessment of dependency — Multiplicand and multiplier method, reduction for imponderables
Civil procedure — Service of process — Dismissal under Order 5 r 3 CPR for failure to effect service
5 February 2009
Driver negligence caused the plaintiff’s severe maiming; a hospital "release" was not proven, and damages were awarded.
Tort — Road traffic accident — Negligence of authorised driver — Owner/employer vicarious liability
Contracts/Release — "Release of all claims" executed in hospital — Validity requires proof of free, informed consent and proper witnessing
Damages — Assessment of general, special and future loss — Permanent disability and loss of earning capacity considered
4 February 2009
Whether a limitation defence raised first on appeal can be entertained and whether speculative damages and excessive interest warranted reduction.
Contract — Limitation — Raising limitation for first time on appeal — Appellate discretion only where full justice can be done and sufficient facts are before the Court
Civil procedure — New points on appeal — Court must have all material facts and be satisfied no evidence would have altered the outcome
Damages — Assessment — Speculation and unsupported inflationary calculations — Appellate interference justified to substitute appropriate interest and general damages
4 February 2009
The defendant was held vicariously liable for its driver’s negligence causing the plaintiff’s amputation and awarded damages.
Road traffic — Negligence — Driver’s traffic conviction as evidence of negligence
Tort — Vicarious liability — Employer liable for servant’s negligent acts committed in course of employment
Damages — Assessment — Award for amputation, pain and suffering; special damages; interest and costs
2 February 2009
Pending appeal against the Registrar’s security-for-costs order precludes dismissal of the main suit.
Civil procedure
— Security for costs — Effect of non-compliance with a Registrar’s order for security — Pending appeal precludes dismissal
— Jurisdiction — Registrar of Land Division’s power to order security when matter is before the High Court — Determination reserved for appeal court
1 February 2009