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Citation
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Judgment date
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| October 2016 |
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The respondent’s report to police did not make her liable for false imprisonment once detention was justified and settled.
Tort — False imprisonment; cause of action requires proof of detention; once detention is proved, defendant must show justification; complainant’s report to police does not automatically render complainant liable for police arrests; appellate reappraisal of evidence where lower court’s factual findings are challenged.
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28 October 2016 |
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Defendant vicariously liable for bus driver’s negligence; proved medical and general damages awarded, exemplary damages disallowed.
* Tort – Negligence – Road traffic accident – vicarious liability of vehicle owner for driver’s negligence – res ipsa loquitur applied due to absence of defence.
* Damages – Special damages must be specifically pleaded and strictly proved; only proved medical bills and police report fee allowed; lump sum awarded for transport/accommodation.
* Damages – General damages awarded for pain, suffering and reduced earning capacity; future earnings not proved.
* Exemplary/aggravated damages – disallowed for lack of evidence of wanton or deliberate conduct.
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28 October 2016 |
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The applicant withdrew the appeal as execution had issued, and the court ordered the appeal withdrawn with each party to bear its own costs.
Civil procedure – Appeal withdrawn by consent – Application overtaken by events where execution issued prior to disposal – Parties agree each bears own costs – Court accepts withdrawal and orders no costs.
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27 October 2016 |
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Court may set aside an Order 17 Rule 6 dismissal via inherent jurisdiction if two‑year inactivity hadn't elapsed.
Civil procedure – dismissal for inactivity – Order 17 Rule 6 CPR – two‑year inactivity period – inherent jurisdiction under section 98 to set aside dismissals – Rawal v Mombasa Hardware; Adonia v Mutekanga – reinstatement of suit – costs to abide outcome.
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27 October 2016 |
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Appeal allowed where vendor’s testimony and dubious sale agreement undermined respondent’s title and trespass finding.
* Land law – ownership disputes – question of title where sale agreement authenticity is disputed; vendor's testimony and boundary re-demarcation material to ownership determination. * Evidence – appellate re-appraisal of oral and documentary evidence (save for demeanour); weight to vendor's testimony. * Procedure – locus in quo evidence and proper recording/cross-examination of locus witnesses. * Remedies – reversal of trespass finding where trial court mis-evaluated key evidence.
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27 October 2016 |
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High Court set aside ex parte judgment for failure to determine issues and appearance by unqualified advocate, ordering retrial.
Revision (s.83 Civil Procedure Act) – exercise of revisionary jurisdiction; default/determination under Order 17 r.3/4 – need to consider evidence and determine issues; reasoned judgment – Order 9 r.10 compliance; advocates Act – appearance without practising certificate renders proceedings and documents invalid; retrial ordered; interlocutory orders stayed.
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27 October 2016 |
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Plaintiffs lacked standing, omitted necessary parties, and used the wrong procedure to challenge a court‑sanctioned compromise, so the suit was struck out.
Civil procedure – Joinder of necessary parties – Attorney General and beneficiaries to a court‑sanctioned compromise must be joined where their rights will be affected; Representative actions – O.1 r.8 – persons represented are bound by compromises entered by their authorized representatives; Res judicata – issues previously decided in former proceedings bar re‑litigation; Consent judgments/compromises – court orders which must be challenged by appeal, review or set‑aside (O.9) not by fresh suit; Forum and procedure – functus officio and proper post‑judgment remedies (appeal, review, taxation procedures).
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27 October 2016 |
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Admission in defence and annexed letter established liability for pre-gazette developments; quantum deferred pending valuation.
Civil procedure – Judgment on admission (O.13 r6) – Requirement of clear and unambiguous admission; Compensation for compulsory acquisition – liability admitted for developments existing before gazette date; Quantum deferred pending valuation report.
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26 October 2016 |
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Court joined a government authority as defendant and refused a third‑party notice against an estate administrator.
Third‑party notice — O.1 r.14 CPR — requirement of a direct claim to contribution or indemnity; Joinder of necessary parties — O.1 r.10(2) CPR — court may join a party necessary for effective and complete adjudication; Nexus to land compensation and relocation justifies joinder; Ex parte applications — costs ordinarily awarded against the applicant.
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20 October 2016 |
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High Court may not call up or transfer a matter originally filed in a court lacking jurisdiction; jurisdictional defects are fatal.
* Civil procedure – Transfer/withdrawal of proceedings – Section 18(1) Civil Procedure Act – limits where originating court lacked jurisdiction. * Jurisdiction – Fundamental question of law – jurisdictional defects not cured by transfer or counsel’s error. * Election law – jurisdiction over LCIII chairperson election petitions vested in High Court; filing in subordinate court is a nullity.
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20 October 2016 |
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Application to set aside ex parte judgment dismissed for inordinate delay, lack of prima facie defence and failure to prove duress.
* Civil procedure – setting aside ex parte judgment – Order 9 r.27 – requirement of timely application, proof of non-service or sufficient cause, and prima facie defence. * Service – service on counsel constitutes service on party; negligence of counsel not automatically imputed. * Contract/consent judgments – duress (imprisonment) requires proof of involuntariness, protest, lack of alternatives and prompt action to rescind. * Evidence – res ipsa loquitur and police sketch plan as basis for inference of negligence.
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20 October 2016 |
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Appellants’ cattle held liable for crop damage; special damages and costs upheld on adequate evidence.
* Civil procedure – first appeal as re-trial – appellate evaluation of factual findings and witness credibility
* Tort/delict – trespass by cattle – liability for crop damage
* Damages – special damages must be pleaded and proved; assessment by Agricultural Officer admissible
* Costs – costs follow the event; no mandatory notice of intention to sue required in the circumstances
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18 October 2016 |
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Court entered default judgment under Order 9 Rule 6 after sufficient service and the defendant’s failure to file a defence.
* Civil Procedure – Order 9 Rule 6 – Default judgment for liquidated demand where defendant fails to file a defence – substituted service as sufficient proof of service. * Service – substituted service and multiple attempts – affidavit of service as compliance with Order 9 Rule 5. * Remedies – award of principal, interest, general damages and costs on default judgment.
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18 October 2016 |
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An appellant may be held vicariously liable for his driver’s negligence even if vicarious liability was not specifically pleaded, absent failure of justice.
* Civil procedure – adequacy of grounds of appeal – Order 43 Rules 1 & 2 – vague and conclusory grounds liable to be struck out. * Tort – negligence – vicarious liability – master liable for servant’s acts done in course of employment even if contrary to orders. * Pleadings – departure from pleadings – evidence departing from pleadings not fatal where no failure of justice; matter may be decided on merits.
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18 October 2016 |
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Advisory Land Committee members lacked sufficient legal interest for joinder; application denied and costs awarded to respondent.
* Civil procedure – Joinder of parties – Order 1 rr.1,10(2) & 13 CPR – Requirements for adding parties to suit.
* Land law – District Land Committees – advisory role under s.64 Land Act – not corporate and lack capacity to be sued.
* Joinder – necessity to enable efficient and complete adjudication – absence of direct legal interest precludes addition.
* Procedural – ex parte application – unsuccessful applicants ordered to pay costs.
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18 October 2016 |
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Appellant who agreed to repair vehicle to roadworthy standard liable for pre-collision value less repaired value; mitigation reduced general damages.
Tort – negligent driving – contractual memorandum to repair – estoppel; expert valuation of motor vehicle; special damages calculation (pre-collision value less post-repair value); mitigation of loss and deduction of offered payment; appellate re-evaluation of evidence.
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14 October 2016 |
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Council irrationally ignored statutory internship committee’s clearance; mandamus and damages granted for unfair administrative action.
* Administrative law – judicial review – decisions that are illegal, irrational, or procedurally improper are reviewable; * Statutory committees – National Internship Committee’s certification binds the appointing Council and may estop the Council from denying its clearance; * Estoppel – public body estopped from contradicting its agent’s representation; * Remedies – mandamus to compel registration; damages for unfair administrative treatment; * Joinder – public officer properly joined where malice or abuse of office is pleaded.
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14 October 2016 |
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A High Court appeal must be commenced by a memorandum; time excluded under s.79(2) requires proof when the certified record was availed.
Civil procedure – Appeals – Time limits – Section 79 Civil Procedure Act and Order 43 CPR – memorandum of appeal required to commence High Court appeal – notice of appeal and provisional memorandum do not suffice – exclusion of time under s.79(2) requires proof of when certified record was availed – court’s discretion under s.79(1)(b) to admit appeal for good cause.
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13 October 2016 |
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Words imputing witchcraft to the respondent were defamatory and actionable per se; appeal dismissed with costs.
Defamation – Slander – Imputation of witchcraft; whether words were defamatory and referred to plaintiff; publication to third parties; actionable per se (Witchcraft Act); presumption of general damages; appellate interference with quantum.
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13 October 2016 |
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Execution of a compensation order while the related appeal is pending violated section 197(3) and justified quashing the committal order.
* Criminal law – Enforcement of compensation orders – section 197(3) Magistrates Courts Act prohibits payment or execution before appeal determination. * Procedure – Distress and committal – section 183 requires warrant of distress and return of insufficiency before committal. * Revision – High Court’s power under section 50(1) Criminal Procedure Code Act to quash unlawful execution. * Court’s inherent powers – imposing time limits to prevent abuse and undue delay in prosecution of appeals.
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13 October 2016 |
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Res judicata inapplicable where earlier suit was dismissed on preliminary points; appellant’s trespass claim against respondent is maintainable.
Res judicata — requires previous decision on the merits; Dismissal on preliminary points not a bar; Joint tortfeasor — renting/letting land can disclose cause of action; Limitation — cause of action accrues on adverse possession and continuing trespass accrues separately; Pleadings — strike out/amendment preferred to summary dismissal where triable issues exist.
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13 October 2016 |
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An application to tax an advocate/client bill may proceed despite imperfect service if the statutory protective purpose was effectively achieved and no prejudice resulted.
* Advocates Act (s57, s58) – service and delivery of advocate/client bill of costs – purpose vs strict compliance.
* Procedure – whether non‑compliance with service requirements bars taxation proceedings.
* Taxation – distinction between an application to tax an advocate/client bill and a suit to recover costs; factual disputes on payment for resolution by the Taxing Officer.
* Client protection – statutory thirty day opportunity to negotiate or seek taxation and assessment of prejudice from non‑compliance.
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13 October 2016 |
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Appellants failed to rebut respondent’s inheritance claim; trial court correctly found trespass and properly conducted locus inspection.
* Land law – ownership by inheritance – proof on balance of probabilities to establish title to unregistered land
* Tort – trespass to land – entry and cultivation without consent constitutes trespass
* Evidence – credibility findings and weight of evidence on appeal; appellate court may reassess but give due regard to trial court
* Procedure – inspection of locus in quo: permissible for understanding evidence, must not introduce fresh unrecorded observations
* Limitation and bona fide occupancy – applicability to unregistered land and timing of pleas
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13 October 2016 |
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Chief Magistrate acted ultra vires; only High Court may set aside Magistrate Grade One judicial orders.
Magistrates Courts Act s.221 — limits of Chief Magistrate supervisory powers; Civil Procedure Act s.83 — High Court revision jurisdiction; illegality and ultra vires acts; civil committal — no power for Chief Magistrate to release civil debtor; article 126(2)(e) — substantive justice over technicalities.
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6 October 2016 |
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Appellant's challenge fails: trial's trespass and boundary findings upheld; locus in quo proper and appeal time-barred.
* Land law – trespass and boundary disputes – determination of boundary by evidence of customary boundary marks (trees) and preponderance of probabilities. * Evidence – appellate re-evaluation of credibility and weight of oral testimony. * Civil procedure – locus in quo inspections; purpose, limits and parties’ duty to procure witnesses. * Civil procedure – timeliness of appeals under section 79; incompetence where filed out of time without extension.
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6 October 2016 |