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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 |