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Citation
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Judgment date
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| October 2012 |
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Discontinuance rendered prerogative reliefs moot; applicants awarded general damages for prolonged prosecution and abuse of process.
* Constitutional law – Right to fair and speedy trial (Article 28(1)) – Prolonged delay in prosecution as abuse of court process
* Judicial review – Damages under Rule 8 of the Judicature (Judicial Review) Rules 2009 – Claim must be pleaded and actionable
* Criminal procedure – Effect of discontinuance on prerogative remedies (certiorari/prohibition)
* Damages – Rejection of speculative future-earnings calculations; award of general damages
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5 October 2012 |
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The court declared that manufacture, distribution and use of plastic bags violate citizens' right to a clean and healthy environment.
* Environmental law – plastics/polythene – whether manufacture, distribution, use and disposal infringes citizens' constitutional right to a clean and healthy environment
* Constitutional duty – Parliament and authorities must enact measures to protect and preserve the environment (Article 245)
* Remedies – declaration of violation granted; detailed bans, regulations and restoration orders left to legislation and regulatory agencies
* Judicial restraint – courts may declare rights infringed but defer specific regulatory or legislative remedies to the competent authorities
* Polluter-pays principle referenced as an established environmental management principle under the statutory scheme
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5 October 2012 |
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Recorded radio allegations of serious crimes were malicious libel; plaintiff awarded damages, injunction and costs.
* Defamation – radio broadcast – recorded live broadcast constituted libel where defamatory words were recorded on CDs/tapes and widely transmitted.
* Defamation – justification/fair comment – defence of fair comment fails where factual imputations are not proved true; comments imputing criminality require proof.
* Malice – failure to apologize and failure to justify statements may be evidence of malice.
* Remedies – award of substantial general damages, permanent injunction and costs with interest where libelous allegations of serious crimes are unproven.
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2 October 2012 |
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High Court sets aside the trial court's decision due to improper locus in quo procedure and reliance on hearsay evidence.
Civil procedure – locus in quo – improper procedure – reliance on hearsay evidence – land dispute
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2 October 2012 |
| September 2012 |
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Appeals and reviews
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29 September 2012 |
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Mandamus ordered to compel Treasury to pay decretal sums awarded against the Government after certificate issuance.
Government proceedings – enforcement of money judgments – section 19 Government Proceedings Act – certificate of order – Treasury Officer of Accounts’ duty to pay – mandamus to compel payment – Judicature Act ss.36(1), 37 – precedent: Shah v Attorney General.
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28 September 2012 |
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The plaintiff lacked locus standi and evidence was insufficient to prove forgery or sustain the previous ruling.
Civil Procedure – Locus Standi – Forgery Allegations – Power of Attorney Validity – Estate Administration – Sufficiency of Evidence – Procedural Fairness
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28 September 2012 |
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Court appointed foreign applicants as legal guardians of an abandoned child and permitted emigration subject to protective conditions.
* Children law – Abandoned child – Paramountcy of best interests when appointing legal guardians.
* Guardianship – Appointment of foreign nationals as legal guardians – suitability assessed by home study and adoption reports.
* Transfer of child abroad – Court authorization to emigrate subject to safeguards: passport, registration with foreign/state authorities, embassy notification.
* Safeguards – Annual welfare reporting to local authorities until majority; permission to complete foreign adoption subject to law.
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27 September 2012 |
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Judicial review dismissed as time-barred; cause of action arose on council vote and judicial review unsuitable to overturn majority vote.
Judicial review — Time limits — Rule 5(1) Judicature (Judicial Review) Rules 2009 — "first arose" means date of decision/vote — delay and extension of time — lack of minutes/ministerial consultation not sufficient excuse — appropriateness of judicial review to challenge majority political votes; alternative remedy by civil suit.
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26 September 2012 |
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Registry failure to notify judgment justified an extension of time; stay granted conditionally on payment of substantial security.
Civil procedure – extension of time to appeal – registry failure to notify judgment – sufficient cause; Stay of execution pending appeal – requirements: likelihood of success or irreparable injury or balance of convenience; security for performance of decree – adequacy and quantum; costs awarded.
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26 September 2012 |
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Parental care and protection|HR
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25 September 2012 |
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An applicant granted leave to file a defense after default judgment upon showing arguable issues and paying costs for delay.
Civil procedure – setting aside default judgment – discretion of court – requirements for extension of time to file defense – balancing interests of justice and prejudice – meritorious defense.
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25 September 2012 |
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Court set aside estate judgments and executions for procedural irregularity and lack of jurisdiction.
Estate administration – jurisdiction – absence of Letters of Administration; procedural irregularity – ex parte judgment, lack of service, failure to file pleadings and call evidence; execution based on void/irregular judgments; relief by revision and setting aside.
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24 September 2012 |
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Whether payment to the liquidator under a sale agreement vested ownership in the respondent and remedies for excess occupation.
Land law – sale agreement with payment to liquidator – payment receipts and liquidator’s release of caveat – transfer of ownership of registered land; customary land not included in sale – eviction and permanent injunction; damages and mesne profits require evidence quantifying loss or profit; costs where parties partly succeed.
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21 September 2012 |
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A prior High Court decree upholding title bars a later suit; compensation is triable but does not delay eviction.
Land law – res judicata – prior High Court decree upholding registered title and ordering vacant possession; application to set aside decree dismissed; subsequent suit barred. Abuse of process – repetitive, dilatory applications to delay execution – court’s power under s.17(2)(a) Judicature Act to curtail proceedings. Compensation for improvements – triable issue but not a condition precedent to eviction.
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21 September 2012 |
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A judicial review filed beyond the three‑month statutory period without good reason is invalid and struck out with costs.
Judicial review – limitation period – applications must be made promptly and within three months under section 36(7) Judicature Act and Rule 5(1) Judicial Review Rules 2009 – time runs from date grounds first arose; extension requires good reason – time-barred application struck out; merits not considered.
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21 September 2012 |
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Civil Procedure|Evaluation of Evidence
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21 September 2012 |
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Civil Procedure|Appeals and reviews
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21 September 2012 |
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Appellate court upholds that land entrusted to appellant remained respondent’s; unauthorized donation void; appeal dismissed.
Land law – ownership by inheritance; trust/custodial possession – caretaker obliged to share harvest and not to alienate land without owner’s consent; disposal/donation by caretaker unlawful; limitation – cause of action arose on unauthorized donation (2008); appellate review – complaint of omitted evidence must be substantiated and new points of law improperly raised on appeal will be rejected.
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21 September 2012 |
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Magistrate’s court lacked jurisdiction over planning-driven road closures; statutory planning remedies apply.
* Jurisdiction - statutory conferral – town planning disputes fall under Town and County Planning Act scheme; magistrates’ courts not vested with jurisdiction. * Town and County Planning Act – declared schemes may provide for closing/diversion of roads and rights of way; statutory remedy and appeal route to Planning Board and High Court. * Common law torts – nuisance cannot displace a specific statutory remedy. * Cause of action – requires right, violation and defendant responsibility; absence of causation defeats claim.
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21 September 2012 |
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Respondent’s diminished responsibility and prospects of reform precluded death; sentenced to 32 years for filicide.
Criminal law – allocutus/reference-back after mandatory death sentence declared unconstitutional; applicability of death penalty only for the most serious crimes; sentencing principles – retribution, deterrence, prevention, reformation; burden on the State to prove aggravating factors beyond reasonable doubt; relevance of mental disorder/diminished responsibility at sentencing; parental filicide as significant aggravating factor.
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20 September 2012 |
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Land|Land Dispute|Title to real property
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18 September 2012 |
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Plaintiff’s claim failed because the 1st Defendant was a bona fide purchaser; plaintiff was privy to his wife’s fraudulent use of the title.
Land law – transfer and mortgage of registered land; fraud and impersonation; bona fide purchaser for value without notice; Registration of Titles Act s.176(c); attribution of fraud to prior owner who authorized title use.
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18 September 2012 |
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A court ordered authorities to resolve a land ownership dispute before compelling approval of building plans and awarded damages.
Administrative law – judicial review – mandamus – local government – building plan approval – land ownership dispute – remedies – damages for delay – costs.
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14 September 2012 |
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Applicant failed to show sufficient cause or meet stay preconditions; extension and stay were refused with costs.
* Civil procedure – taxation of costs – extension of time to appeal taxation order – sufficiency of cause for delay; service and awareness of Taxation Hearing Notice.
* Civil procedure – execution – stay of execution – Order 43 r.4(3) preconditions (substantial loss, prompt application, security) must be satisfied.
* Advocates Act – Section 62 and Regulations – limits on invoking residual powers to override CPR requirements.
* Evidence – admissibility of related court documents (Annexture B) to show awareness of proceedings.
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7 September 2012 |
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An application seeking review and stay was refused as an abuse of process, with the court emphasizing expeditious resolution of disputes.
Civil procedure – Review of court orders – Appeals and review – Stay of proceedings – Abuse of court process – Expeditious disposal of suits.
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6 September 2012 |
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Application to reinstate suit dismissed for non-appearance rejected due to inordinate delay and insufficient cause shown by applicant.
Civil Procedure – Application to set aside dismissal – Sufficient cause – Delay and negligence of counsel – Acts of counsel binding on client – Requirements for reinstatement of suit after dismissal for non-appearance.
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5 September 2012 |
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Torture‑tainted, uncorroborated confessions and defective investigation resulted in acquittal for alleged murders.
Criminal law — murder: post‑mortem establishes death and malice aforethought; confession obtained under torture inadmissible; unlawful prolonged detention breaches constitutional prohibition on torture and right to speedy trial; prosecution must independently corroborate repudiated statements; failure to prove participation — acquittal.
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4 September 2012 |
| August 2012 |
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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.
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28 August 2012 |
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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.
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28 August 2012 |
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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
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28 August 2012 |
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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.
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24 August 2012 |
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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.
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24 August 2012 |
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Criminal law
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23 August 2012 |
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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.
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22 August 2012 |
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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.
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20 August 2012 |
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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.
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18 August 2012 |
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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.
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17 August 2012 |
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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.
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17 August 2012 |
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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.
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16 August 2012 |
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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.
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16 August 2012 |
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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.
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16 August 2012 |
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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.
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16 August 2012 |
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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.
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16 August 2012 |
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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.
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16 August 2012 |
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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.
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16 August 2012 |
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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.
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16 August 2012 |
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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.
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15 August 2012 |
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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.
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15 August 2012 |
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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.
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14 August 2012 |