|
Citation
|
Judgment date
|
| August 2012 |
|
|
Withdrawal after defence filed generally entitles defendants to costs unless good reason to deny them.
Civil procedure – Withdrawal of suit – Order 25 r.1 CPR – Plaintiff who withdraws after defence filed ordinarily liable for defendant’s costs; Section 27 Civil Procedure Act – judicial discretion; appellate interference where discretion misapplied.
|
28 August 2012 |
|
Applicant failed to prove a valid purchase; respondents redeemed the pledged land, so appeal dismissed with costs.
Land law – proof of sale – rescission of sale and refund of deposit – redemption of pledged land by satisfaction of debt (payment as ordered) – appellate re-evaluation of evidence and deference to trial findings where supported by exhibits and uncontroverted testimony.
|
28 August 2012 |
|
The Plaintiff's tort claims were dismissed due to being time-barred under the limitation laws.
Tort law – limitation of actions – employment law – wrongful dismissal – unlawful arrest and detention – public service transfer
|
28 August 2012 |
|
Interdiction of a public officer pending criminal proceedings is lawful and need not be preceded by a full hearing.
Local government discipline – Interdiction of public officer pending criminal proceedings; Responsible officer’s power to interdict under standing orders (FR-6) and S.29 Public Service Act; No requirement for pre-interdiction hearing where criminal charges pending; Interdiction is not dismissal and referral to District Service Commission for hearing is appropriate.
|
24 August 2012 |
|
The court granted a temporary injunction and appointed an administrator pendente lite to protect the estate pending trial.
Succession law – validity of wills – potential automatic revocation of a will by a subsequent marriage; Interim relief – temporary injunction requirements: prima facie case, irreparable harm; Succession Act s.218 – appointment of administrator pendente lite; Interim administrator powers limited to preservation and management, not distribution.
|
24 August 2012 |
|
Criminal law
|
23 August 2012 |
|
Competing land titles and alleged fraudulent registration raise factual issues requiring full hearing; preliminary objection dismissed.
Land law – competing certificates of title – factual dispute as to which certificate describes the suit land; preliminary objection alleging illegality/fraud in registration raises questions of fact and mixed law requiring evidence and cannot be decided interlocutorily; requirement to effect service of counterclaim on all defendants before proceeding.
|
22 August 2012 |
|
Application to set aside appeal dismissal denied due to applicant's lack of diligence and insufficient grounds for reinstatement.
Civil procedure – application to set aside dismissal for want of prosecution – diligence of litigant and counsel – prospects of success – abuse of judicial process – need to hold litigants accountable for delay and inaction.
|
20 August 2012 |
|
Conviction quashed where trial court mis-evaluated evidence and ignored the appellant’s defence; no retrial ordered.
Criminal procedure – right to legal representation – absence of counsel not necessarily fatal where accused given opportunity to conduct defence and did not seek adjournment. Evidence – appellate re-evaluation – danger of considering prosecution case in isolation and treating defence perfunctorily. Evidence – identity and execution of documents – need for proof (handwriting expert) where signature and name are disputed. Defence – alibi – prosecution retains burden to negative alibi; court must consider it. Sentencing – constitutional requirement to credit remand time when imposing imprisonment. Remedies – compensation under section 197(1) – trial court’s discretion; retrial not ordered where prosecution evidence is insufficient and gaps should not be filled by another trial.
|
18 August 2012 |
|
Matrimonial property is joint and ordinarily divided equally on divorce, including pre-marriage assets and party-built improvements.
Constitutional law — Article 31(1) — equal rights in marriage and at dissolution; Matrimonial property — joint ownership and equal division irrespective of pre-marriage acquisition; Proof and admissibility — written sale agreements and documents admitted in scheduling conferences control; Effect of mortgage — mortgage is a security not a transfer of title; Custody and access — parties’ agreement respected; Remedies — valuation of improvements and restitution for sold vehicle.
|
17 August 2012 |
|
An appeal was dismissed where the notice failed to state statutory grounds and out-of-time grounds lacked an extension.
Criminal procedure – Appeals – Notice of appeal must state general grounds and include written request for judgment where applicable – Failure to comply with s.28 CPC Act renders appeal incompetent; subsequent out-of-time grounds require statutory extension – Oral requests to trial magistrate do not substitute for written requests to Registrar.
|
17 August 2012 |
|
Revision allowed where magistrate dismissed applicant’s case and ordered execution without hearing, based on erroneous findings.
Revision jurisdiction – Magistrate acting as judge in own cause – Failure to hear parties – Fundamental errors on face of record – Quashing of judgment, decree and execution orders – Remittal for proper trial.
|
16 August 2012 |
|
An earlier equitable interest from a valid sale prevails; a later fraudulently procured title must be cancelled and the holder evicted.
Land law – equitable interest from unregistered sale – priority of equities (first in time prevails); issuance of subsequent certificate of title without requisite board minutes; fraudulent procurement of title; cancellation of title; trespass; damages.
|
16 August 2012 |
|
Failure to file appellate submissions, without new evidence or an apparent error, does not justify review under O.46 CPR.
Civil Procedure — Review under Order 46 CPR — grounds: new evidence, mistake apparent on face of record, sufficient reason; Failure to file appellate submissions does not by itself justify review; Submissions are not evidence; Appellate re-evaluation of evidence precludes review absent shown injustice.
|
16 August 2012 |
|
A serving police officer who hasn't lawfully resigned is ineligible for nomination; Electoral Commission failed in its vetting duty.
Local government elections; candidate eligibility – public officer status under Art.252 and s.116(5) Local Governments Act; resignation v. desertion – Police Act s.17 and s.59; Electoral Commission duty to vet and ensure free and fair elections (Electoral Commission Act s.12(e)); nomination and election nullity; costs against Commission.
|
16 August 2012 |
|
High Court set aside conflicting lower-court orders in a land dispute and ordered a fresh trial before the competent magistrate's court.
Land law – inter-jurisdictional confusion between LC.I, LC.II, Land Tribunal and Chief Magistrate’s Court – conflicting directives and competence issues. Civil procedure – revisional jurisdiction to correct incoherent or conflicting lower court orders. Execution – propriety of execution where record and orders are contradictory. Remedy – setting aside conflicting orders and remitting matter for fresh trial before competent forum.
|
16 August 2012 |
|
A subsisting prior monogamous marriage renders a later customary marriage void, affecting custody, alimony and property rights.
Marriage law – Prior subsisting monogamous marriage renders subsequent marriage void ab initio; nullity v divorce. Family law – Custody determined by best interests of the child; children’s choice considered. Remedies – No divorce or alimony where marriage is void; property distribution follows law of acquisition not matrimonial property law. Property – Family home registered in children’s names remains theirs; encumbrances to be cleared by the incurring party.
|
16 August 2012 |
|
Conviction based on falsified testimony undermines fair trial; appeal allowed and conviction set aside.
Criminal law – conviction based on prosecution witnesses later charged with perjury – safety of conviction – right to fair trial (Article 28(1)) – prosecution concession – setting aside conviction and sentence.
|
16 August 2012 |
|
LC.I courts had jurisdiction over the 2007 customary land dispute; Chief Magistrate’s supervisory decision was lawful.
Local Council Courts — Jurisdiction of LC.I under section 11 of the Local Council Courts Act and Regulation 32 — Land disputes in customary tenure — Supervisory review by Chief Magistrate — No illegality or irregularity where record shows jurisdiction.
|
16 August 2012 |
|
A Magistrate Grade II lacked jurisdiction to award land in a maintenance and custody matter; the order was quashed and retrial ordered.
Children Act – Family and Children Court jurisdiction – scope limited to custody, parentage, maintenance and prescribed child criminal matters – does not extend to adjudication of land ownership or possession by a Magistrate Grade II. Jurisdictional limits – orders made without jurisdiction are nullities and will be quashed. Civil procedure – revision – appropriate remedy is quashing the invalid order and ordering a retrial before a competent superior court.
|
15 August 2012 |
|
Burden-shifting to a taxpayer in customs offences is permissible under Article 28(4)(a) and does not override constitutional supremacy.
Constitutional law – Right to fair trial – Presumption of innocence (Art.28(3)) and exception permitting statutory burden (Art.28(4)(a)). Tax/customs law – Sections 203, 223 and 253 of the East African Community Customs Management Act – burden of proof on taxpayer. Constitutional supremacy – Article 2(1)-(2) prevents Act provisions from overriding the Constitution. Procedure – requirement of a prima facie case before referral to Constitutional Court.
|
15 August 2012 |
|
Applicant’s conversion documents lacked District Land Board minutes/signatures, so court refused to compel issuance of a title.
Land registration – application for certificate of title – requirement of District Land Board approval and minute – compliance with Land Regulations S.I.100 of 2004 (Forms, signatures, seal, dates) – burden of proof in ex parte proceedings – insufficiency of informal letter in lieu of minutes.
|
14 August 2012 |
|
Lack of a judicial ruling, improper valuation by bailiff, and absence of parties rendered taxation irregular and it was set aside.
Civil procedure – Taxation of costs – Bailiff’s bill of costs – Requirement for judicial ruling and adherence to taxation rules – Prohibition on bailiff fixing value of land absent parties’ pleadings – Necessity of parties’ attendance at taxation; irregularity vitiates award.
|
14 August 2012 |
|
Civil Procedure|Appeals and reviews|Taxation law
|
14 August 2012 |
|
Application to revoke letters of administration failed for relying on s.221 instead of statutory s.234 grounds; summons dismissed with costs.
Succession Act – revocation of Letters of Administration – Section 234 grounds required (defective proceedings, fraud, concealment, false inventory, failure to account) – Section 221 limited to trustee property; Registration of Titles Act s.59 – certificate of title prima facie proof of ownership; adverse possession claims require proper procedure.
|
13 August 2012 |
|
Civil Procedure|Appeals and reviews|Land
|
7 August 2012 |
|
Civil Procedure|Contract Law|Formation and validity of Contract|Contract of Sale
|
7 August 2012 |
|
Civil Procedure|Land|Land Dispute
|
7 August 2012 |
|
Delict and Tort Law|Negligence
|
7 August 2012 |
|
Appellate court affirmed customary succession by oral evidence, disregarded extraneous references and dismissed the appeal with costs.
Civil procedure – Second appeal – appellate court as rehearing court – re-evaluation of evidence and credibility despite not having seen witnesses. Customary succession – proof by oral testimony and corroboration – donation and long possession as proof of ownership. Evidence – inadmissible/extraneous matter in judgment to be disregarded if other admissible evidence supports decision. Res judicata – earlier judgment on different parcels not conclusive; may be used only as corroborative evidence.
|
7 August 2012 |
|
Bail refused for accused indicted for aggravated defilement due to seriousness of offence and absence of exceptional circumstances.
Criminal procedure – Bail – Application for bail on indictment for aggravated defilement – Consideration of presumption of innocence and right to liberty versus seriousness of offence and risk of absconding – No exceptional circumstances under s.15 Trial on Indictment Act – Bail refused.
|
3 August 2012 |
|
Adultery established by admission and corroboration; decree nisi granted and custody of minor retained by petitioner.
Family Law – Divorce – Proof of adultery – admission in Agreement for Separation and corroborative evidence sufficient to establish adultery. Family Law – Custody – Welfare of the child paramount – status quo custody maintained where child has lived with petitioner since separation. Civil Procedure – Ex parte proceedings – respondent properly served and petition proceeded in absence of answer.
|
2 August 2012 |