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Citation
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Judgment date
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| December 2011 |
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First respondent’s missing reply affidavit does not bar participation; parts of second respondent’s affidavit breach Order 19 Rule 3 but are retained.
Affidavits — affidavit in reply; Order 19 r.3 — matters within deponent’s knowledge; court fees and proper filing; admissibility and partial exclusion of affidavit material; distinction between affidavit in reply and written statement of defence.
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22 December 2011 |
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An ex parte applicant must prove entitlement to a vesting order with documentary evidence; absence of annexures and judgment led to dismissal.
* Civil procedure – ex parte proceedings – defendant served but absent – applicant retains burden to prove case on balance of probabilities. * Evidence – affidavits must be supported by annexed documents relied upon; absence of referenced annexures and prior judgment is fatal to application for vesting of land. * Land law – vesting orders and transfer of land require clear documentary proof of title and decree.
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21 December 2011 |
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A criminal conviction for forgery justified cancellation of a forged title and registration of the applicant under section 177 RTA.
* Registration of Titles Act s177 – rectification of register – cancellation of certificate obtained by forgery – criminal conviction as basis for consequential order; * Civil Procedure – ex parte proceedings where respondent fails to file affidavit or appear – uncontroverted affidavit evidence deemed admitted; * Estates – administrator with powers of attorney entitled to be registered following rectification of forged title.
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21 December 2011 |
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Transfer found forged; registered title set aside; plaintiff declared administrator; defendant not a bona fide purchaser.
* Land law – Registered title – Indefeasibility and fraud – Forged transfer and proof required to impeach registered title. * Bona fide purchaser – elements: title, good faith, value, absence of notice – burden on registered proprietor to prove freedom from fraud. * Evidence – hand-writing analysis admissibility and weight. * Limitation – fraud exception: limitation runs from discovery of fraud.
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19 December 2011 |
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Applicant proved sufficient cause (no service, misplaced file) and court set aside dismissal and reinstated the suit.
Civil procedure – Order 9 r.23 – setting aside dismissal for non-appearance where sufficient cause is shown; ex parte proceedings where respondents fail to file pleadings; unchallenged affidavit evidence presumed true.
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15 December 2011 |
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Where a third party bought and occupied a kibanja bona fide without notice, a mere sale agreement by the prior purchaser does not establish constructive possession.
Land law – kibanja (customary tenure) – constructive possession vs actual possession; bona fide purchaser without notice; admissibility and sufficiency of sale agreement; pleading and proof of fraud; appellate grounds must not be argumentative or narrative.
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15 December 2011 |
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The applicant’s appeal against convictions for embezzlement, abuse and false accounting was dismissed.
Criminal law – embezzlement, abuse of office, false accounting – sufficiency of evidence – admissibility and weight of handwriting expert report – requirement to confine evidence to dates and amount in charge sheet (MCA provisions) – appellate review of factual credibility findings.
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14 December 2011 |
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Applicant’s suit reinstated where former advocate’s negligence constituted good cause to set aside dismissal.
Civil procedure – Setting aside dismissal under Order 9 r.17 and s.98 – Good cause shown where former advocate’s negligence/misleading advice caused non-appearance – Res judicata and locus standi are substantive issues for trial – Suit reinstated.
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12 December 2011 |
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Appeal dismissed as appellant failed to justify re-trial decisions and improperly introduced new appeal grounds.
Civil procedure; appeal process; original jurisdiction; introduction of new grounds in appeal without leave; re-trial procedure.
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8 December 2011 |
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Appeal from dismissal of leave to defend in a summary suit required leave and was struck off; dismissal also upheld on the merits.
Civil procedure – Summary suits (Order 36 CPR) – Application for leave to defend – Appealability – Order 44 CPR – leave to appeal required for orders not listed as appealable as of right – appeal struck off for failure to obtain leave; trial magistrate’s dismissal for lack of triable issue upheld.
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8 December 2011 |
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Application to cancel a registered title dismissed as premature because the underpinning consent judgment is pending revision.
* Land law – Cancellation of registered title – Whether Registrar should cancel title where underlying consent judgment is challenged by pending revision. * Civil procedure – Multiplicity of proceedings and abuse of process – Prematurity of interlocutory/challenging relief while related revision pending. * Judicature Act s.33 – Avoiding multiplicity and ensuring complete determination of matters.
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8 December 2011 |
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Registrar can correct titles under s91, but cancelling titles is irrational once a pending court suit on fraud exists.
Administrative law – Judicial review – Illegality and irrationality – Registrar’s powers under section 91 Land Act to cancel or correct title where certificate "is illegally or wrongfully obtained" (fraud) – Irrational to commence cancellation proceedings after pending High Court suit on same issue – Ex parte proceedings and effect of uncontroverted affidavit evidence – Remedies: certiorari, mandamus, permanent injunction.
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7 December 2011 |
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Ex parte plaintiff proved bona fide purchase; defendant’s caveat was unjustified, vacated, and plaintiff awarded damages and costs.
Land law – bona fide purchaser for value; caveat – validity and removal; wrongful caveat – liability under s.142 Registration of Titles Act; ex parte proceedings after substituted service; award of general damages for loss of profit and inconvenience.
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7 December 2011 |
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Advanced age can constitute exceptional circumstances warranting bail pending trial in a capital offence.
Constitutional law – Article 23(6) – bail in capital offences; exceptional circumstances – advanced age; remand 180‑day rule for automatic bail; stringent bail conditions and sureties.
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7 December 2011 |
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Court upheld convictions for fraudulent accounting and abuse of office based on handwriting and circumstantial evidence.
Anti‑Corruption Act — Fraudulent false accounting (s.23(a)&(b)) and abuse of office (s.11(1)) — Sufficiency of evidence — Handwriting expert opinion and circumstantial evidence (altered use‑by dates, duplicate/forged vouchers, single‑point responsibility for drug distribution) — Appeal dismissed.
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6 December 2011 |
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Refusal to adjourn after counsel’s failure denied the appellant the constitutional right to a fair hearing.
Civil procedure – right to be heard – denial of fair hearing where defence closed before defendant could give evidence; counsel’s failure to present defence – adjournment to obtain fresh counsel usually required; miscarriage of justice – setting aside judgment and ordering retrial.
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2 December 2011 |
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An order striking a party from a Chief Magistrate’s suit is appealable to the High Court as of right; objection overruled with costs.
* Civil procedure – appeals from Magistrates’ Courts – whether a Chief Magistrate’s order striking a party is appealable to the High Court – interpretation of section 220(1)(a) of the Magistrates Courts Act.
* Civil procedure – scheduling conferences – applicability to appellate courts versus trial courts.
* Civil procedure – preliminary objections – abuse of process by re‑raising previously determined jurisdictional objections.
* Service – participation in hearing may render service objection academic.
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1 December 2011 |
| November 2011 |
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A plaint alleging deprivation of land by fraud properly discloses a cause of action under section 176 RTA.
* Land law – Registration of Titles Act s.176 – exceptions to indefeasibility – person deprived of land by fraud may challenge registered proprietor.
* Civil procedure – preliminary objection/strike out – whether plaint discloses a cause of action; assumption that pleaded facts are true at pleading stage.
* Pleading – essentials of cause of action: right, violation, and defendant liability; allegations of fraud and equitable claims suffice at pleading stage.
* Title – certificate of title not absolute where fraud is properly pleaded; merits to be determined at trial.
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30 November 2011 |
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IGG may not investigate matters pending in court; investigatory reports require fair opportunity to respond, but remedies sought were inappropriate.
Administrative law – Inspectorate of Government – limits on investigating matters pending before court (s.19(1) Inspectorate of Government Act); natural justice – duty to afford hearing before making adverse allegations; prerogative remedies – certiorari, mandamus and declaration inappropriate where report is investigatory and no specific statutory duty is shown.
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29 November 2011 |
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Summary dismissal of a partly heard land claim without hearing violated natural justice; matter remitted for rehearing with costs.
Land law — transfer of partly heard tribunal cases — dismissal for delay — natural justice and right to be heard — proper application of Civil Procedure Rules (Order 17) — remittal for rehearing.
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29 November 2011 |
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Failure to extract the decree in a magistrate-court appeal renders the appeal incompetent and warrants striking it out, despite timely notice.
Appeals — Magistrates’ Court to High Court — requirement to extract and file decree with memorandum of appeal — duty of unsuccessful party — failure to extract decree is fatal irregularity and renders appeal incompetent — notice of appeal may commence appeal; delay in memorandum excused where proceedings awaited — incompetence not cured by amendment, supplementary record or reinstatement; appeal struck out.
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29 November 2011 |
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An unlawful, indefinite suspension without statutory safeguards amounted to dismissal; plaintiff awarded compensation and defendant’s counterclaim dismissed.
Employment law – suspension and termination – compliance with Employment Act s.63 (suspension) and s.65 (termination) – unsigned written contract does not negate existing contract by conduct – unlawful suspension may amount to dismissal – remedies for unlawful dismissal; counterclaim for recovery of alleged misappropriated funds: burden of proof.
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29 November 2011 |
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Court finds unlawful distress and awards damages for wrongful detention of property affecting advocate’s business.
Landlord and tenant – breach of contract – unlawful detention of property – re-entry and distress – damages awarded.
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28 November 2011 |
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Temporary injunction granted where trial court misapplied prima facie test, prejudged merits, and awarded unclaimed costs.
Civil procedure – Temporary injunctions – Order 41 r(1)(a) CPR – prima facie triable issues, irreparable injury, balance of convenience; Land law – whether written instrument is sale or security; Judicial discretion – costs cannot be awarded where not specifically prayed for; Prohibition on disposing of main suit by interlocutory ruling.
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23 November 2011 |
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22 November 2011 |
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Application to set aside ex parte judgment dismissed due to proper substituted service and fatal defects in applicants' affidavits.
Civil procedure – Application to set aside ex parte judgment – Validity of substituted service – Role and sufficiency of affidavits – Representative affidavits without written authority – Preliminary objections upheld – Dismissal of application.
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18 November 2011 |
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Petitioner failed to prove unlawful nomination, bribery or substantial electoral irregularities; petition dismissed, costs awarded.
Electoral law – election petitions – heightened civil standard of proof; nomination challenges – proof and admissibility of public instruments; bribery and illegal practices – need for cogent and independent corroborative evidence; hearsay and late affidavits – limits and remedies; ballot‑box stuffing and multiple voting – requirement of persuasive proof; Electoral Commission duties – neutrality, appointment of officials, and substantial effect on result.
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13 November 2011 |
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A stay of execution was refused where no appeal or notice had been filed against the decree sought to be stayed.
Civil procedure – stay of execution – application for stay pending appeal – whether stay can be granted absent a filed appeal or notice – inherent jurisdiction of High Court – requirements for exercising discretion to stay execution.
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10 November 2011 |
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Purchaser ready to pay remaining price is entitled to specific performance where vendor frustrates payment and repudiates.
* Sale of land – validity and binding effect of written sale agreement witnessed by local authorities – equitable conversion where deposit paid.
* Breach and repudiation – vendor’s evasion and prevention of purchaser’s performance constitutes repudiatory conduct.
* Remedies – purchaser ready and willing to pay outstanding balance entitled to specific performance; time for completion may be dispensed with in equity.
* Priority of equities – first in time prevails; alleged resale to third party ineffective against prior equitable interest.
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7 November 2011 |
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Proved intercourse and age but accused’s identification uncorroborated; required corroboration absent, so acquittal follows.
Defilement – elements: unlawful sexual intercourse, age under 14, accused’s participation; Unsworn evidence of child of tender years – statutory requirement for corroboration (s.40(3) Trial on Indictments Act); Medical evidence – slight penetration sufficient to establish intercourse; Identification – assessment factors and risk of mistaken identity; Admissions/behaviour – when such conduct can amount to corroboration.
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7 November 2011 |
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Ex parte judgment set aside where defendant was not notified and had an unchallenged, plausible defence.
Civil procedure — Order 9 r27 — setting aside ex parte judgment where defendant not notified; uncontested affidavit evidence deemed admitted; existence of prima facie defence; restoration for inter partes hearing; costs to abide outcome.
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3 November 2011 |
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Petition to set aside a parliamentary election dismissed: procedural defects curable and alleged irregularities not proved to affect result.
Election law — competence of pleadings and answers — procedural irregularities curable; Election law — non‑compliance with electoral procedures — quantitative and qualitative tests for substantial effect on result; Election law — bribery and illegal practices — high standard of cogent, corroborated evidence required; Pleading — defamatory/malicious statements must be pleaded verbatim; Evidence — secondary audiovisual evidence inadmissible without proper foundation.
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2 November 2011 |
| October 2011 |
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A defendant may, on showing sufficient cause and providing security, have an ex parte judgment set aside to defend the suit.
Civil Procedure – Setting aside ex parte judgment – Effectiveness of service of summons – Affidavit of service – Security for leave to defend – Summary procedure on dishonoured cheques.
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31 October 2011 |
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Appeal allowed where trial court improperly shifted burden and prosecution failed to prove embezzlement beyond reasonable doubt.
Criminal law – Burden of proof – prosecution’s duty to prove guilt beyond reasonable doubt – onus does not shift to accused; Embezzlement – proof beyond reasonable doubt – conflicting evidence and unclear money trail amount to reasonable doubt; Abuse of office – not proved where principal offence unproven; Appellate review – re-evaluation of evidence where trial court misdirected on burden of proof.
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31 October 2011 |
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Prior representation of an estate does not automatically bar counsel from representing a party in litigation involving that estate.
* Advocates’ professional conduct – conflict of interest – former client – SI 267-2 rule 4 – disqualification only where advocate knows facts prejudicial to former client. * Succession/estate disputes – distinction between existence of estate and existence of letters of administration. * Procedure – preliminary objection to advocate’s appearance must show actual conflict or prejudicial confidential information.
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24 October 2011 |
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Accused convicted of aggravated defilement where victim’s credible testimony and medical corroboration proved the offence; sentenced to 18 years.
Criminal law – Aggravated defilement – ingredients: sexual intercourse, victim under 18, participation, person in authority; corroboration of victim’s testimony by delayed medical report and observed distress; identification by single familiar witness; sentencing considerations.
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24 October 2011 |
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An illegal recount executed under a void court order cannot lawfully overturn the applicant's original election declaration.
Election law – Recount under section 55 PEA – chief magistrate must personally direct and conduct recount; order delegating judicial recount to Electoral Commission is nullity ab initio; recount conducted in defiance of High Court injunction and without certificate of recount void; initial returning officer declaration remains valid where recount illegal; non-service of petition is irregularity not automatically fatal to competence.
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23 October 2011 |
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Appellate court quashed convictions where bank was not a public body and retracted cautioned statements were improperly relied upon.
Criminal law – Abuse of office – meaning of "public body" and government shareholding after divestiture; evidentiary law – charge and caution statements/retracted confessions – necessity of proper trial-within-a-trial and corroboration; admissibility and weight of co-accused statements.
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21 October 2011 |
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A purchaser at a court-ordered sale is entitled to be registered as proprietor and have a special title issued if vendors refuse transfer.
Land law – Registration of Titles Act – enforcement of consequential orders – court-ordered sale – registration of purchaser as proprietor – failure of vendors to transfer title – powers of court to order substitution of names and issuance of special certificate of title.
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18 October 2011 |
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Court adjourned the suit and refused defendants’ locus standi preliminary objection pending resolution of an ownership appeal.
* Civil procedure – preliminary objection – locus standi – whether a court should entertain a preliminary point of law on ownership when same issue is pending on appeal in another matter; * Judicial economy – multiplicity of proceedings – application of section 33 Judicature Act; * Constitutional context – High Court not final (Article 134(2)) and prudence in deciding issues subject to appeal.
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13 October 2011 |
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Proven campaign bribery by the respondent invalidated the election and a by-election was ordered.
Election law – election petition – bribery and illegal practices – standard of proof in election petitions (balance of probabilities, need for careful scrutiny) – single proved illegal practice can vitiate election (s.61(1)(c), s.63(4)(c) Parliamentary Elections Act) – withdrawal of petition against Electoral Commission – costs.
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12 October 2011 |
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A biased administrative review breached the applicant’s right to fair procurement, rendering the award void and awarding damages.
Public procurement — fairness of bidding process; administrative law — right to fair hearing (Art. 42); bias and disqualification of adjudicators named as referees by bidders; PPDA oversight and effect of a halt directive; nullity of contract executed in breach of PPDA directive; damages — failure to strictly prove special damages, award of general damages and interest; exemplary damages require specific pleading.
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11 October 2011 |
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Whether the defendant was a partner or joint owner, and whether the administrator’s registered land titles and remedies were lawful.
Partnership law – existence of partnership: burden of proof and relevance of written agreement, conduct and sharing of profits; Land law – requirement of registration for title and joint tenancy; Succession/administration – administrator may preserve estate interests and register title under RTA s.28; Pleading rules – fraud must be specifically pleaded before being tried; Remedies – injunctions, eviction, damages and costs.
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11 October 2011 |
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Failure to account for advanced public funds and not refunding them constituted abuse of office and caused financial loss.
* Criminal law – Abuse of office – Failure to account for public funds and failure to respond to audit query as an arbitrary act prejudicial to employer.
* Criminal law – Causing financial loss – Non-performance of activity and failure to refund public funds establishing knowledge of resultant loss.
* Evidence – Trial magistrate’s evaluation and findings upheld on appeal.
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6 October 2011 |
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Application for injunction to prevent cancellation of title dismissed for lack of prima facie case and pending statutory process.
* Civil procedure – Temporary injunctions – preservation of status quo – requirements: pending suit, prima facie triable issue, irreparable harm and balance of convenience. * Land law – Registrar/Commissioner powers – rectification/cancellation of title under Registration of Titles Act and Land Act – requirement of notice, hearing and communication of decision. * Inherent powers – section 98 Civ Proc Act – discretionary and not to be used to pre-empt substantive determination.
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6 October 2011 |
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An election may be set aside upon proof of bribery by the successful candidate, regardless of non-compliance with other electoral procedures.
Electoral law – Election petitions – Whether non-compliance with electoral law and irregularities (including ballot paper errors and exclusion of agents) invalidated the election – Burden of proof in election petitions – Standard of proof – Election bribery – Proof of illegal practices – Setting aside of election upon proof of bribery – Reliefs and costs.
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5 October 2011 |
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Court sets aside judgment due to agreement under duress and trees being on a road reserve, not private land.
Trespass – Road reserves – Duress in police custody – Award of general and special damages.
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2 October 2011 |
| September 2011 |
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Allegations of recurring trespass create a triable limitation issue; section 5 (recovery of land) inapplicable at pleading stage.
Limitation Act s.5 — distinction between recovery of land and recurring tort of trespass; preliminary objection on limitation decided on pleadings only; triable issue where pleadings permit reasonable inference that action is not time‑barred; authenticity of exhibits premature at PO stage.
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29 September 2011 |
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Election set aside for substantial non‑compliance and disenfranchisement; bribery and agent‑liability not established.
Electoral law – non-compliance with PEA s53 and s61(1)(a) – disenfranchisement where RO excluded polling station results – failure to control ballot papers – substantial effect on result – allegations of bribery and illegal practices not proved; EC liable for costs.
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22 September 2011 |
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Election annulled for substantial disenfranchisement and bribery by a candidate’s agent; new election ordered.
Electoral law – Non-compliance with EC Act and PEA – disenfranchisement from missing/cancelled DRs – incorrect tallying of votes – admissibility of uncertified DRs where certified copies not produced – vicarious liability of candidate for agent’s bribery (Section 68 PEA) – remedy: annulment and fresh election (Section 63(4)(c)).
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22 September 2011 |