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Citation
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Judgment date
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| November 2012 |
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Appellant’s premature termination breached handbook procedure; unlawful dismissal damages upheld, defamation and exemplary awards quashed; PAYE but not NSSF deductions applied.
Employment law – disciplinary procedure – premature termination in breach of Staff Handbook – unlawful dismissal; Evidence – appellate reception of additional evidence (mortgage deed); Damages – validation of general damages for unlawful dismissal, setting aside defamation and exemplary awards for lack of publication/insufficient basis; Statutory deductions – PAYE payable but NSSF deduction not applicable post-termination; Interest – 24% on pay in lieu from suit filing, 10% on damages from judgment; Contract/loan – mortgage clause accelerating debt on cessation, but repayment tied to settlement of employer’s indebtedness.
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29 November 2012 |
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A retrial was ordered after the magistrate improperly rejected documentary evidence, rendering the trial unfair.
Evidence — Admissibility of secondary evidence and copies — Evidence Act ss.61, 62, 66 — Handwriting proof and secondary evidence; Civil Procedure — Order 43 (fresh trial) — Trial irregularity for improper rejection of documentary evidence; Right to test evidence by cross-examination; Appellate remedy of retrial.
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29 November 2012 |
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Whether circumstantial evidence, recent possession and burden of proof supported convictions and a compensation order.
Criminal law – Circumstantial evidence and recent possession – requirements for moral certainty; burden of proof remains with prosecution – silence of accused cannot substitute proof; double convictions – cannot be convicted both of theft and receipt of same property; compensation – improper where stolen goods recovered and returned.
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28 November 2012 |
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Application to set aside dismissal dismissed for failure to show sufficient cause and absence at hearing.
Civil procedure – application to set aside dismissal – restoration to cause list – sufficient cause required for non-appearance; Attendance on adjournment date but absence on hearing date; Failure to file affidavit in reply does not automatically amount to admission if facts denied in submissions.
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26 November 2012 |
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Revision inappropriate where challenge to res judicata is an error of law; appeal, not revision, is the proper remedy.
Civil Procedure – Revision under section 83 CPA – limited to jurisdictional errors, failure to exercise jurisdiction, or illegal/materially irregular exercise of jurisdiction; Res judicata – determination is a question of law for appellate review; Revision is inappropriate where remedy sought is effectively an appeal.
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26 November 2012 |
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The court allowed an application to proceed to a full hearing of a land dispute despite affidavit inconsistencies.
Civil procedure – application to set aside/vary – inconsistencies in affidavit – full hearing of land dispute – unfounded counsel misconduct allegations – no order as to costs.
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26 November 2012 |
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A certificate of title confers legal possession and supports a trespass claim absent proven fraud or a valid kibanja interest.
Land law – Registration of Titles Act – certificate of title as conclusive evidence of ownership and possession; trespass – right to sue; Evidence Act s.110 – limited application where title exists; kibanja/tenant by occupancy – proof required; procedure – ex parte hearing where respondent not served.
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23 November 2012 |
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High Court overruled preliminary objection, holding High Court appeal rules differ from Court of Appeal rules and appeal may proceed.
Civil procedure – appeals to High Court – time limit under section 79 Civil Procedure Act – exclusion of time for preparation of record; service of letter requesting record – Court of Appeal rules inapplicable to High Court appeals; certification requirements; negligence of counsel not to be visited on client.
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23 November 2012 |
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Non-compliance with court directive to file sworn witness statements warranted dismissal and personal costs against plaintiffs’ counsel.
Land law; ex parte proceedings – burden of proof remains – requirement for sworn witness statements – non-compliance amounts to abuse of court process – personal costs against counsel.
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22 November 2012 |
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Applicant in possession granted injunction preserving status quo pending determination of competing title dispute.
* Civil procedure – Temporary injunctions – Requirements: pending suit, status quo, prima facie case, irreparable injury, balance of convenience; Order 41 CPR applies to prevent alienation of disputed property pending litigation.
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22 November 2012 |
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Applicant raised triable issues but injunction denied because respondent was in actual possession and damages would suffice.
* Civil procedure – interlocutory relief – temporary injunction – requirements: pending suit, prima facie case, irreparable harm, balance of convenience. * Status quo – preservation of actual state of affairs prior to suit – possession and developments determine status quo. * Evidence – inadmissibility of evidence adduced from the bar; proper procedure to file rebutting affidavit or seek leave. * Order 41 CPR – power to grant injunction where property is in danger of alienation, wasting or damage.
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22 November 2012 |
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Objector failed to prove possession; MOU/assignment ineffective without deed/registration; application dismissed and wasted costs ordered against advocate.
Attachment and execution – possession as determinative factor; Memorandum of Understanding versus binding contract; company capacity and incorporation; authority of company secretary to sue without board resolution; assignment of lease requires deed and registration – equitable assignment does not confer legal possession; bills of lading as evidence of title; licence to occupy does not pass interest defeating attachment; wasted costs against advocate for prosecuting unauthorised proceedings.
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20 November 2012 |
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Plaintiff’s special damages claim failed for lack of cogent proof; vacant possession and eviction granted.
* Evidence – special damages – require strict, cogent proof by balance of probabilities; oral evidence insufficient without corroboration or receipts.
* Civil procedure – departure from pleadings and contradictions undermines credibility of claim for pecuniary loss.
* Remedies – interest on damages payable from date of suit if damages proved; rate subject to court determination.
* Property – vacant possession conceded and eviction ordered.
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20 November 2012 |
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Accused convicted of two murders on reliable identification, corroborative retracted statement, and common intention; two consecutive 20-year terms.
Criminal law – Murder (Sections 188, 189 Penal Code) – Visual identification at night under bright moonlight – Reliability factors (prior acquaintance, quality of light) – Retracted charge and caution statement as corroborative evidence – Common intention (section 20 Penal Code) – Consecutive custodial sentences for multiple murders.
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19 November 2012 |
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Prosecution proved aggravated defilement of a child beyond reasonable doubt; accused convicted and sentenced to 17 years imprisonment.
* Criminal law – Aggravated defilement – elements: victim under 14, sexual intercourse, identity of perpetrator; medical and eyewitness corroboration. * Alibi – proximity of alleged alternative location and prosecution’s rebuttal. * Sentence – deterrence and protection of children.
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19 November 2012 |
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A registered certificate of title prevails over an unproved customary occupation claim absent fraud; caveat reinstatement did not cancel the title.
Land law – customary occupation versus registered title; effect of reinstated caveat; indefeasibility of title absent fraud; allocation by government official versus customary land; admissibility and sufficiency of evidence of possession; procedural non-compliance in grounds of appeal but merits determination in public interest.
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16 November 2012 |
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Deemed admission to counterclaim plus proved fraud justified title rectification and dismissal of the appeal.
* Civil procedure – Counterclaim – Reply – Order 8 r.18(5) CPR: failure to reply deemed admission of facts; court may permit late reply.
* Court fees – Rule 6 Court Fees Rules: discretion to validate documents by ordering payment of fees retrospectively.
* Land law – Fraud in registration – Superimposed survey marks, prior occupation and failure to compensate customary occupants can amount to fraud to defeat unregistered interest.
* Survey evidence – Resurvey/Joint survey relied upon to determine overlap (Plot 234) and justify rectification of title.
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16 November 2012 |
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Vendor’s failure to transfer title is breach; kibanja rights require proof and registered title stands unless fraud is proven.
Land law – sale of mailo land – handwritten addenda to sale agreement – validity and effect; Breach of contract – vendor’s duty to pass good title – specific performance and damages; Customary tenure (kibanja) – burden of proof and requirements; Certificate of title – conclusive evidence of ownership under RTA and impeachable only upon proof of fraud; Fraud in land transactions – must be pleaded and strictly proved.
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16 November 2012 |
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The appellant’s land claim failed: cause of action accrued in 2006, locus visits unnecessary, and unpleaded fraud could not succeed.
* Land law – continuous trespass – accrual of cause of action when possession is denied (2006); * Limitation – continuous tort exception; * Locus in quo – visit discretionary, not mandatory; * Evidence – documentary sale agreement preferred over inconsistent oral evidence; * Fraud – must be pleaded and strictly proved; * Gift inter vivos – reversionary/inherited interest distinguished.
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16 November 2012 |
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Mandamus was premature; applicant must demand payment of the revised government judgment debt before court compels payment.
* Administrative law – prerogative writs – mandamus – discretionary remedy – requirement of a clear legal right and appropriateness of remedy where taxed costs have been disputed and revised under s.19(3) Government Proceedings Act. * Civil procedure – enforcement of judgment debts against the State – necessity of fresh demand after revision of taxed costs; prematurity of mandamus application. * Public finance – budgetary year considerations – notice that non-payment within the financial year may attract mandamus.
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15 November 2012 |
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Review of a consent order dismissed where alleged error was disputed, not apparent on record, and discovered after excessive delay.
Civil procedure – review of consent orders – application under Order 46(1)(b) and Section 83 – error apparent on face of record required for review; disputed factual controversies and negotiated settlements are unsuitable for review; delay in detecting alleged error undermines review claim.
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14 November 2012 |
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High Court may revise magistrate orders and set aside an ex parte judgment where procedural technicalities caused material injustice.
• Revision — High Court’s power under s.83 CPA to revise magistrates’ proceedings, including interlocutory orders effectively disposing suits.
• Affidavits — failure to distinguish knowledge and belief does not necessarily invalidate whole affidavit; offending parts may be severed.
• Adjournments — genuine adjournment requests by letter from counsel should be considered to avoid injustice; courts must apply substantive justice (Art.126(2)(e)).
• Ex parte judgments — may be set aside where refusal to adjourn and procedural technicalities result in material irregularity and denial of hearing on triable issues.
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14 November 2012 |
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Procedural irregularities and apparent tampering with court records warranted setting aside the judgment and ordering a retrial and consolidation.
Civil procedure – missing pleadings and tampered court records – malpractice and inference of miscarriage of justice – appellate review impeded – retrial and consolidation ordered; service to Inspectorate of Courts.
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14 November 2012 |
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Plaintiff failed to prove Registrar’s fraud and the tort claim was time-barred; suit dismissed with costs.
* Land law – Alleged fraudulent transfer of registered land – proof of fraud must be strict and establish nexus to Registrar of Titles.* Public law/tort – Actions against the Government – two-year limitation for torts under the Civil Procedure and Limitation (Miscellaneous Provisions) Act; accrual and knowledge rule; disability must be pleaded and proven to suspend limitation.* Evidence – hearsay inadmissible to prove lack of consent by absent administrators.* Registered title and long-standing transfers undermine allegations of recent fraudulent interference by Registry officials.
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13 November 2012 |
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Application for judicial review against university for alleged unfair withholding of research funds dismissed for lack of evidence.
Judicial review – administrative law – mandamus and prohibition – university research funding – liability for returned funds – no evidence of bias or unlawful withholding – applicant's awareness of administrative error.
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9 November 2012 |
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Death by strangulation proved with malice, but circumstantial evidence failed to prove the accused’s participation beyond reasonable doubt.
Criminal law – murder – elements: death, unlawfulness, malice aforethought, participation – circumstantial evidence and reliability of admissions made while intoxicated.
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9 November 2012 |
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An unchallenged affidavit showed the respondent lacked legal interest to sustain a caveat, so the court ordered its removal.
* Land law – Caveat – Lodging and maintenance of caveats under RTA s139 – requirement of lawful estate or interest. * Evidence – Effect of unchallenged affidavit and annexures in ex parte proceedings – deemed admission and probative value. * Civil procedure – Ex parte hearing permissible where respondent fails to file affidavit in opposition (CPR Order 9/Order 52). * Mortgage law – Transfer to mortgagee and effect on proprietors’ estate under Mortgage Act.
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8 November 2012 |
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Counsel’s negligence may justify setting aside a dismissal and reinstating an appeal for hearing on the merits.
Civil procedure – appeal dismissed for counsel’s failure to file submissions – negligence of counsel as sufficient cause to set aside dismissal; Order 43 r16 inapplicable to failure to file submissions; section 98/inherent powers to reinstate appeals; Order 17(4) – judge may write judgment where submissions not made.
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8 November 2012 |
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Appellants' grievous harm convictions set aside where medical evidence showed only temporary bruising, not maiming.
Criminal law – Grievous harm vs actual bodily harm – medical evidence on permanence of injury – proof of common intention/joint liability – appellate re-evaluation of evidence.
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8 November 2012 |
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Plaintiffs with a prior equitable interest were entitled to a right of way; the Board’s allocation was void and the lease cancelled.
Land law – Allocation of public land by District Land Board – Prior equitable interest – Section 59 Land Act (as amended) – Void transaction; Easement – Right of way by necessity; Ex parte proceedings following defendant's default; Punitive/exemplary damages against public body for arbitrary conduct.
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8 November 2012 |
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Defendants established a bona fide triable issue and were granted leave to defend a summary debt claim including disputed interest.
Civil procedure – Summary judgment (Order 36) – Leave to appear and defend – requirement to show bona fide triable issue; dispute over contractual liability for interest arising from creditor’s bank loan – interest claim held triable where not provided for in contract.
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8 November 2012 |
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Temporary injunction refused where respondents’ actual possession prevailed and alleged loss was compensable by damages.
Land law – temporary injunctions – Order 41 CPR – requirements: pending suit, prima facie case, irreparable injury, balance of convenience and preservation of status quo; actual possession versus absent claimant; damages as adequate remedy.
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8 November 2012 |
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Cancellation of a proprietor’s registration without a fair hearing was unlawful; applicant entitled to reinstatement.
* Land law – Registrar of Titles – cancellation/rectification of entries on certificate of title – mandatory compliance with section 91 Land Act (notice, hearing, reasons, calling duplicate certificate).; * Procedural fairness – rules of natural justice – opportunity to be heard before administrative cancellation of title.; * Civil procedure – ex parte proceedings – failure to file affidavit in reply treated as admission but burden of proof remains on applicant.; * Remedy – unlawful cancellation declared void and reinstatement ordered.
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1 November 2012 |
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Failure to conduct a mandatory recount under section 54 PEA invalidated a narrowly decided election.
Election law – Parliamentary Elections Act (PEA) – mandatory recount under s.54 where margin <50 votes – Returning Officer’s duties – custody and seals on ballot boxes (s.51–52) – proof of disenfranchisement – effect of non-compliance on result.
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1 November 2012 |
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Court appointed foreign applicants as legal guardians and permitted removal abroad as being in the infant’s best interests.
Children law – best interests of the child paramount; appointment of legal guardians; foreign applicants permitted where no suitable local relatives; permission to remove child abroad; oversight and registration requirements.
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1 November 2012 |
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A strike‑out for no cause of action fails if the plaint on its face pleads the essential elements; factual disputes need trial evidence.
Land law – preliminary objection – whether plaint discloses cause of action; procedural principle: court looks only at plaint and annexures and assumes pleaded facts true; disputes over lease expiry, standing and pre‑incorporation transactions require trial evidence.
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1 November 2012 |
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Administrative guidance is not a reviewable decree; consent judgment finally determined by the Supreme Court cannot be re-opened.
Civil Procedure – Review under Order 46 CPR – review limited to decrees or orders; administrative guidance not reviewable; duty to extract formal decree before review; finality of Supreme Court decisions; execution proceedings to be challenged under Order 22 rule 19 CPR.
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1 November 2012 |
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Unchallenged affidavit evidence established a caveatable interest; application to remove caveat dismissed with costs.
Caveat — removal application; caveatable interest under section 139 RTA; effect of unchallenged affidavit evidence; procedural default — Order 17 r.4 CPR permits determination despite applicant's failure to file rejoinder.
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1 November 2012 |
| October 2012 |
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Murder proved but accused acquitted because single-witness identification in dark, frightening conditions was unreliable and uncorroborated.
Criminal law – Murder and attempted murder; proof of unlawful killing and malice aforethought; visual identification – single witness reliability; need for corroboration in difficult conditions; doctrine of common intention; burden of proof beyond reasonable doubt.
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30 October 2012 |
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Court convicted the first accused for aggravated robbery on reliable identification; co‑accused acquitted for insufficient evidence.
* Criminal law – Aggravated robbery – elements: theft plus use or threat of deadly weapon or actual violence; proof beyond reasonable doubt required. * Criminal evidence – Identification – reliability of contemporaneous identification, corroboration by independent witness, and weight of inconsistent initial police statements. * Criminal procedure – Alibi – prosecution duty to disprove alibi by independent evidence. * Sentencing – balancing aggravating factors (victim’s age, viciousness, prevalence of the crime) and mitigating factors (first offender, remand time).
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29 October 2012 |
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Applicant entitled to join respondents as co-defendants to avoid multiplicity; substantive defences reserved for the main suit.
* Civil procedure – Joinder of parties – Order 1 rule 3 CPR – Necessary parties where rights arise from same transaction and multiplicity of suits to be avoided.
* Civil procedure – Joinder stage procedure – merits and defences (bona fide purchase, alternative access) not to be decided at joinder stage.
* Res judicata/privity – Consent judgment in another suit not binding where applicant was not a party.
* Land – successors in title and municipal approval relevant to joinder but for substantive determination in main suit.
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25 October 2012 |
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Applicant failed to show judicial recovery from the registered proprietor; vesting order under section 77 RTA was refused.
* Land law – Registration of Titles – Vesting orders – Section 77 RTA contingent on recovery of land by proceedings from registered proprietor.
* Civil procedure – ex parte hearings – defendants’ failure to file defence does not displace applicant’s burden to prove case on balance of probabilities.
* Abuse of process – seeking transfer of registered title absent judicial recovery.
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25 October 2012 |
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Omission to name who drew an affidavit is a curable technicality; court may order correction and costs.
Affidavits – Formalities – omission to state who drew affidavit; Preliminary objection – technical defects; Article 126(e) Constitution – court’s power to cure irregularities and order costs; Authorities: Sagu v Roadmaster Cycles; Kebirungi Justine v Road Trainers.
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25 October 2012 |
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Appellants had long-standing kibanja rights on clan land; respondent trespassed and was not a bona fide occupant, injunction and damages granted.
Land law – kibanja/user rights on clan (mailo) land – proof by long occupation and wills; Trespass – elements and remedies where user-rights exist; Bona fide occupant – definition under s.29(2) Land Act and statutory 12-year rule; Civil procedure – appellate powers to reframe issues (s.80 CPA) and to determine trespass on record; Locus in quo – role in encroachment disputes; Judgment formalities – signing by different magistrate irregular but not necessarily prejudicial.
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25 October 2012 |
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Applicant entitled to restoration of leasehold encumbrance after registrar unlawfully endorsed "surrendered" and failed to justify or correct it.
* Land law – registration – rectification of register – removal of encumbrance and endorsement "surrendered" without instrument number or consent. * Powers of Registrar – section 91(2) Land Act and section 182 Registration of Titles Act – duty to correct erroneous entries. * Procedure – ex parte relief where respondent is served but does not file affidavit or appear; uncontroverted affidavit evidence deemed admitted.
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25 October 2012 |
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An appellate court may admit a newly discovered certificate of title when it was unavailable at trial and is relevant to the appeal.
Civil procedure – Appeal – Admission of additional evidence on appeal; Section 80(1)(d) Civil Procedure Act; Order 43 r.22 CPR; Exceptional circumstances – evidence not available at trial; Relevance and credibility of newly discovered documents (certificate of title); Effect of registered title on bona fide purchaser finding.
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18 October 2012 |
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Whether an original boundary agreement and locus evidence prevail over a later sketch in a land trespass dispute.
Land law – boundary dispute – original sale agreement (Exp.1) vs later sketch (Exd.1) – evidentiary weight; locus in quo evidence and tampering with boundary marks (kokowe tree); appellate review of factual findings.
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18 October 2012 |
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Affidavits sworn by unauthorized non‑parties are incompetent; unchallenged applicant's facts led to the application being allowed.
Civil Procedure – Order 3 and Order 19 CPR – competence of deponents to swear affidavits – recognized agent, advocate or holder of power of attorney required – affidavits by clerk/process server or non‑party defendant incompetent – unchallenged affidavit facts accepted.
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18 October 2012 |
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Civil Procedure|Appeals and reviews|Land
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18 October 2012 |
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Illegal eviction entitled the plaintiff to general damages; claimed special damages failed for lack of strict proof.
* Civil torts – unlawful eviction and removal of goods – evidence of forcible entry and removal; * Damages – distinction between special and general damages; special damages must be specifically pleaded and strictly proved; * Liability – resident/in-charge owner held liable; capacity to sue or be sued.
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12 October 2012 |