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Citation
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Judgment date
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| December 2012 |
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PAYE charged on retrenchment/terminal benefits was unlawful; benefits were pension/exempt and refunds, damages, interest and costs awarded.
Taxation – PAYE – Terminal/retirement/retrenchment benefits – Whether terminal benefits payable on compulsory retrenchment are taxable – Article 254(2) Constitution and s.21(1) Income Tax Act exemption – s.19(1)(d) compensation for loss of contract not applicable to repatriation allowance – s.19(4) 75% rule for long‑service employees and over‑taxation.
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27 December 2012 |
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Bail does not automatically lapse on committal; courts may reinstate bail with strict conditions where flight risk exists.
Criminal law – Bail – Whether bail lapses on committal to High Court; bail supervision after committal; factors justifying stringent bail conditions (foreign passport, alleged large-scale fraud); procedure for ensuring continued monitoring of accused on bail.
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24 December 2012 |
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An applicant for vesting of registered land must use s.177 RTA and prove entitlement on the balance of probabilities.
Land — Vesting/transfer of registered land — Appropriate remedy under Registration of Titles Act s.177 — Use of general powers under Civil Procedure Act s.98 and Judicature Act s.33 — Burden of proof in ex parte proceedings — Necessity of attaching and proving annexures and certified decrees — Abuse of process where annexures are falsely represented.
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20 December 2012 |
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Court granted temporary injunction preserving applicants' allocations pending trial due to prima facie case and irreparable harm.
Injunctions — temporary injunction — preservation of status quo pending suit — Order 41 CPR — prima facie case/triable issue required — irreparable harm — ex parte proceedings where respondent failed to file a reply — costs in the cause.
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20 December 2012 |
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Court granted guardianship, passport and travel authorization and permitted prospective adoption in child's best interests.
* Family law – Guardianship – Appointment of legal guardian where biological parent lacks capacity; child’s welfare paramount.
* Child welfare – Best interests principle – suitability assessed by bond, health, financial capacity and social welfare reports.
* International dimension – Authorization to obtain passport, travel abroad, and pursue adoption under foreign and domestic laws.
* Conditions – Annual reporting to court and probation office; costs to applicant.
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20 December 2012 |
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Applicant occupying matrimonial home granted temporary injunction restraining foreclosure and eviction pending trial.
Land law – Temporary injunction under Order 41 CPR – preservation of status quo – prima facie case/triable issue – irreparable harm – balance of convenience – mortgage/foreclosure – alleged forged consent.
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20 December 2012 |
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Application to set aside interim order dismissed as incompetent because the challenged order and supporting record were not produced.
Civil procedure – power under section 98 CPA – application to set aside interim order – requirement of court record – dismissal as incompetent where challenged order and related files not produced – inability to address merits without record.
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20 December 2012 |
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Whether the State is vicariously liable for police misappropriation of property and wrongful custodial death.
Tort — Vicarious liability of the State for tortious acts of police officers — Misappropriation and conversion of exhibits — Illegal re‑arrest and custodial death — Assessment of special and dependency damages — State liability under Government Proceedings Act.
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18 December 2012 |
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Sale of intestate estate by a customary heir without letters of administration is void; purchasers have no remedy.
Succession law – intestacy – section 191 Succession Act – requirement for letters of administration; customary heirship does not confer power to dispose of estate property; transactions without letters of administration are void ab initio and unenforceable; specific performance not available for illegal sales.
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18 December 2012 |
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Appeal dismissed: petitioner failed to prove voters from another constituency were on municipal registers or that any breach affected results.
Election law – election petition alleging misallocated voters – burden of proof on petitioner to identify voters on contested registers; appellate procedure – technicalities (decree extraction, record contents, seal) not to defeat substantive justice; court discretion to frame issues and to call for inspection of documents; costs follow event unless good reason.
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18 December 2012 |
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A representative suit filed without prior court leave is incurably defective and cannot be cured by amendment; suit struck out with costs.
Civil procedure – Representative actions – Requirement for prior leave under Order 1 r.8 and compliance with Order 7 r.4 – Mandatory nature; Failure to obtain leave renders suit incurably defective and incapable of amendment under Order 1 r.13 – Remedy: strike out.
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17 December 2012 |
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Unlawful arrest and assault by police; State vicariously liable and general damages awarded.
Tort — False imprisonment and battery; wrongful arrest without reasonable suspicion; vicarious liability of the State for police misconduct; damages for unlawful detention and assault.
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17 December 2012 |
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Failure to obtain court permission for a representative suit and absence of a disclosed cause of action warranted rejection of the plaint.
Civil procedure – Representative actions – Order 1 r.8 and Order 7 r.4 CPR – Mandatory requirement to obtain court's permission and give notice to persons represented; Pleadings – Cause of action – Order 7 r.11(a) CPR – When a plaint fails to disclose a cause of action; Termination of employment – Effect of termination letter and payment in lieu of notice on existence of a triable complaint.
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17 December 2012 |
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The court held that PAYE deductions from terminal benefits were unlawful, declaring such benefits tax-exempt.
Income Tax – PAYE deductions – Terminal benefits as taxable income – Applicability of tax exemptions under the Pensions Act.
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16 December 2012 |
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PAYE on gratuitous terminal benefits is unlawful; Pensions Act exemption and strict construction of tax provisions preclude such taxation.
Tax law — PAYE — terminal/retirement/ retrenchment benefits — distinction between gratuity and taxable employment income — interpretation of Income Tax Act s.19(1)(a) and (d) — Pensions Act exemption (s.8/s.4A) — authority of Solicitor General opinion in analogous cases.
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16 December 2012 |
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Contradictions in witness accounts and inconsistent medical evidence negated a prima facie case; accused acquitted.
Criminal procedure – Section 73 Trial on Indictments – prima facie case; Evidentiary issues – contradictions in witness testimony and inconsistent medical reports; Manifest unreliability test (Bautt v R).
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14 December 2012 |
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DNA exclusion created reasonable doubt, resulting in acquittal for alleged aggravated defilement despite medical proof of victim's age.
* Criminal law – Aggravated defilement – Elements: victim’s age, sexual intercourse, accused’s participation – burden to prove participation beyond reasonable doubt. * Evidence – Medical report proving age and pregnancy; limits in proving timing of penetration. * Forensic evidence – DNA paternity test excluding accused creates reasonable doubt and can lead to acquittal.
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14 December 2012 |
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Applicant’s letter did not invoke section 182 RTA; fraud allegations require a full trial, so the motion was dismissed with costs.
* Land law – Registration of Titles Act – section 182 – when a communication to the Registrar constitutes an 'application' to rectify or cancel title. * Evidence – Allegations of fraud in land transactions require strict proof and a full trial (cross‑examination), not resolution on affidavit. * Procedure – Notice of motion inappropriate to determine complex fraud in title disputes; ordinary suit is the proper forum. * Form – section 200 RTA permissive about form, but substance must meet requirements in nineteenth schedule.
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13 December 2012 |
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Where parties agree an arbitration clause, the court must stay proceedings and refer the dispute to arbitration.
Arbitration and Conciliation Act – sections 5 and 40 – mandatory referral of disputes to arbitration where parties have an arbitration agreement; stay of proceedings; interplay with judicature and civil procedure powers to prevent multiplicity and abuse of process.
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13 December 2012 |
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Insufficient proof of malice aforethought converts an unlawful killing by stone-throwing from murder to manslaughter; five-year sentence imposed.
Criminal law – Homicide: distinction between murder and manslaughter – requirement of malice aforethought; proof of unlawful act causing death; evidential value of retracted caution statements and witness identification; weight of assessors' advice.
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13 December 2012 |
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Sexual intercourse and participation proved; victim’s exact age uncertain so accused convicted of simple defilement and sentenced to 15 years.
Criminal law – Defilement – proof of age as element distinguishing aggravated and simple defilement; medical evidence and eyewitness testimony as corroboration; credibility and identification in daylight; sentencing — deterrence and mitigation.
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13 December 2012 |
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Accused convicted of aggravated defilement of a mentally disabled child; eyewitness and medical evidence proved guilt; 15-year sentence.
Criminal law – Aggravated defilement – Proof of age – Medical evidence (fresh ruptured hymen) – Eyewitness identification – Mentally handicapped child – Corroboration – Rejection of fabricated accusation/ transferred malice – Sentence for deterrence.
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13 December 2012 |
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Uncorroborated unsworn child testimony cannot sustain a defilement conviction; the accused was acquitted.
* Criminal law – Aggravated defilement – Elements required: age, sexual act, accused’s participation. * Evidence – Child witness of tender years – unsworn evidence requires corroboration under section 40(3) Trial on Indictments Act. * Medical evidence – swelling and physician’s opinion insufficient as standalone corroboration. * Evidence – Failure to cross-examine an accused’s defence can strengthen its credibility. * Procedure – Assessors’ advice not followed where it omits consideration of statutory corroboration requirements.
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13 December 2012 |
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Criminal law
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13 December 2012 |
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Uncorroborated unsworn child evidence and unchallenged alibis cannot sustain a murder conviction.
* Criminal law – murder – elements: death, unlawfulness, malice aforethought, participation; corroboration required for unsworn child evidence (s.40(3) Trial on Indictments Act); prosecution’s burden to disprove an alibi; failure to cross‑examine on alibi may be adverse to the prosecution; assessors’ advice may be disregarded if it does not address critical evidential inadequacies.
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13 December 2012 |
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A court dismissed for lack of jurisdiction cannot be reinstated to decide the same matter; such proceedings are nullities.
Land jurisdiction; functus officio; reinstatement of dismissed proceedings without formal application; jurisdictional defects substantive not technical; Article 126(2)(e) inapplicable to cure lack of jurisdiction; nullity of proceedings and consequent appeals.
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12 December 2012 |
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The appeal challenging alleged tribunal bias and procedural violations was dismissed due to lack of evidence.
Land law – Appeal against tribunal decision – Allegations of bias – Procedural irregularities in counterclaims – Adequate hearing and jurisdiction.
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12 December 2012 |
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Trademark use by partners dissolved partnership; injunction and damages claim dismissed, with ordered deregistration.
Intellectual Property – Trademarks – ownership and use of partnership property – passing off – damages for trademark infringement.
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11 December 2012 |
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Applicants’ equitable interest proved; respondents’ registrations procured by fraud; bona fide purchaser defence not proved; title cancelled and substituted.
Property law – registered versus equitable/unregistered interests; fraud in registration of land; bona fide purchaser for value without notice — onus of proof; duty of purchaser to make inquiries; cancellation and substitution on certificate of title; remedies — declaration, injunction, damages and costs.
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7 December 2012 |
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An appeal cannot succeed where the appellant fails to specify errors and merely reargues evidence; appeal dismissed with costs.
Appeal — scope of review — appellate court limited to grounds in memorandum of appeal; Appeal — not a retrial; appellant must specify errors of law or fact; Costs — generally follow the event (costs ground abandoned).
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7 December 2012 |
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Appellant’s substitution and amendment of the memorandum without leave breached Orders 24 and 43; amended memorandum struck off with costs.
Civil procedure – Substitution of parties – Death of appellant – Order 24 rules 3 and 12 require application by Notice of Motion for substitution; Amendment of Memorandum of Appeal – Order 43 rule 2 prohibits arguing grounds not in the memorandum without leave; Constitutional provision (article 126(2)(e)) does not excuse non‑compliance with mandatory procedural rules.
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7 December 2012 |
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Plaintiff’s land claim dismissed as time‑barred; coverture inapplicable and two‑year tort limitation applied.
Limitation — tort claims (negligence) governed by two-year limit under Civil Procedure and Limitation Act; discovery rule delays commencement until discovery; section 187(1) RTA disabilities (coverture, infancy, lunacy, unsound mind) strictly construed; coverture inapplicable to male plaintiff; strict application of limitation statutes leads to dismissal for being time‑barred.
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7 December 2012 |
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Court upheld the respondent’s title; minor inconsistencies and no locus in-quo visit did not vitiate the decision.
Land law – proof of title – oral sale agreements admissible if properly witnessed; contradictions in evidence – major v. minor inconsistencies; locus in-quo – discretionary visit, not mandatory; appellate interference only for misapplication of principle or manifest error.
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6 December 2012 |
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The appellant's registered land ownership and absence of fraud nullify respondent's claims of lawful occupancy.
Land Law - Ownership - Registered Land Title - Customary Tenancy - Trespass - Evidential Burden
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6 December 2012 |
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Applicant holding the owner’s title must be joined as defendant in suit seeking special certificate over the same land.
Land law – Joinder of parties – Order 1 r.3 and r.10 CPR – Applicant claiming owner’s certificate of title must be joined where land is subject of suit for special certificate; unchallenged affidavit evidence presumed admitted.
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6 December 2012 |
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Transfers and sales of intestate estate without valid letters of administration are illegal and void.
• Succession law – intestacy – requirement of letters of administration before establishing rights to deceased’s property (Succession Act s.191).
• Registration of Titles – administrator must be registered as proprietor before dealing with estate land (RTA s.134).
• Illegality – transactions in estate land effected without lawful letters are void ab initio and unenforceable.
• Reliefs – validation of valid lower-court letters, cancellation of unlawful title entries, eviction, accounting for rents, and costs.
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6 December 2012 |
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Registered certificate of title prevails; sale agreement’s absence did not defeat purchaser’s title and respondent is a trespasser.
Land law – registered title – certificate of title conclusive absent fraud; sale agreement not required to impeach registered title; customary kibanja extinguished on sale and registration; proof of compensation unnecessary where seller did not object and purchaser registered; locus in quo witnesses called under section 100 MCA permissible; evaluation of evidence and trespass acts essential to trespass claims.
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6 December 2012 |
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Ex parte judgment set aside where defendant was abroad and substituted newspaper service was ineffective.
Land law - service of process - substituted service by advertisement ineffective where defendant is outside jurisdiction; proper service out of jurisdiction or on agent required; ex parte judgment set aside; affidavit validity challenge requires evidential foundation.
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6 December 2012 |
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A vague, contradictory plaint lacking essential contract particulars and improper NSSF claims discloses no cause of action and is struck out.
Cause of action – Pleading requirements – Order 6 CPR – necessity to plead material facts and particulars; Employment law – particulars of contract commencement and termination; NSSF – locus standi and enforcement by Inspector/public officer; Jurisdiction – NSSF claims to be pursued under NSSF Act, ordinarily in Magistrate’s Court; Pleadings – internal contradictions and incurably defective plaints attract strike out.
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5 December 2012 |
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An appellate court upheld a 12-year attempted murder sentence as within statutory discretion and not excessive.
Criminal law – Sentencing – Attempted murder – Magistrates Courts Act confers power to impose up to life imprisonment – appellate interference only where sentence is manifestly excessive – mitigating factors (family ties, absence of motive) insufficient to reduce sentence here.
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5 December 2012 |
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Plaintiff's rent default justified re-entry, but both parties ignored mandatory arbitration, so neither receives relief.
Tenancy agreement – rent arrears and lawful re-entry; mandatory arbitration clause – failure to refer disputes to arbitration bars judicial remedies; mutual breach; costs each party.
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5 December 2012 |
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Dying declaration, circumstantial procurement evidence and toxicology corroboration proved the accused’s participation in the child’s poisoning murder.
Criminal law – Murder by poisoning – Role and reliability of dying declarations – Circumstantial evidence (procurement and return of poison) corroborating dying declaration – Forensic toxicology evidence as proof of cause of death – Sentencing: balancing aggravating and mitigating factors.
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5 December 2012 |
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Court dismisses land dispute, confirming defendant's valid ownership title with no encroachment on plaintiff's land.
Property Law – Land ownership – Boundary disputes – Validity of land titles and lawful acquisition.
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4 December 2012 |
| November 2012 |
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Appellate court affirms tribunal’s trespass finding; minor inconsistencies and extra locus-in-quo evidence immaterial.
Land law – trespass – proof of title/possession; appellate review – fresh scrutiny but allowance for not hearing witnesses; credibility – unchallenged corroborative testimony; inconsistencies – immaterial discrepancies do not impeach evidence; locus in-quo – purpose limited to checking evidence, calling new witnesses at locus irregular but harmless if outcome unaffected.
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30 November 2012 |
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Administrative boundary re-demarcation does not defeat prior property rights; sale agreements and possession established ownership and appeal dismissed.
* Land law – proof of ownership – sale agreements and possession – evidentiary value of witnessed sale instruments.
* Administrative boundaries – re-demarcation between villages/sub-counties/counties does not divest pre-existing proprietary rights.
* Civil procedure – locus-in-quo – purpose to check and visually confirm evidence; omission to record does not alone prove bias.
* Judicial conduct – allegations of bias require strict proof; unproven allegations will not vitiate judgment.
* Costs – ordinarily follow the event under section 27(2) Civil Procedure Act; appellate interference limited to manifest error.
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30 November 2012 |
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Applicant’s property release and main suit nullified because respondent lacked locus standi after repossession certificate was cancelled.
Property law – repossession certificate cancelled by Minister – reversion to D.A.P.C.B.; locus standi – agent cannot sue without principal’s authority; procedural relief – ex parte judgment and execution nullified where suit founded on illegality.
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30 November 2012 |
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An Assistant Registrar who grants an interim stay becomes functus officio and cannot later revise that order; separate applications cannot substitute for one comprehensive stay application.
Civil procedure – Stay of execution – O.43 r4(3) C.P.R. – three conditions (substantial loss, no unreasonable delay, security) must be considered together – Assistant Registrar functus officio – inability to revise own order – subsequent order imposing security null and void ab initio.
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29 November 2012 |
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The plaintiff proved defendants’ trespass by survey evidence and obtained ejectment, demolition order and damages.
Land law – Trespass to land – Encroachment proved by district surveyor’s boundary opening report; failure to rebut expert survey – trespass established. Damages – special damages strictly proved by receipt; general damages for inconvenience and loss of use; punitive damages refused where compensatory award adequate. Procedure – party invited but failing to obtain independent survey loses opportunity to challenge expert report.
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29 November 2012 |
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Occupying applicants with triable ownership claims and risk of eviction granted temporary injunction to preserve disputed land.
• Civil procedure – Temporary injunctions – Order 41 CPR – preservation of status quo pending suit • Requirement of prima facie case/serious triable issue • Irreparable injury as inability to be adequately compensated by damages • Balance of convenience favoring occupying applicants
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29 November 2012 |
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Revision application dismissed after the applicant’s supporting affidavit was found false and struck out, leaving the motion unsupported.
* Civil procedure – Revision – supporting affidavit found to contain falsehoods; application struck out.
* Evidence – Affidavits – unrebutted respondent affidavits can rebut applicant’s claims of possession.
* Equity and clean hands – an applicant relying on a false affidavit cannot obtain relief.
* Procedure – a notice of motion cannot stand without a supporting affidavit.
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29 November 2012 |