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Citation
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Judgment date
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| April 2019 |
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Temporary injunction denied where no strong prima facie case and underlying contract had expired.
Civil procedure – temporary injunctions; three-part test (prima facie case, irreparable harm, balance of convenience); discretionary call-off contracts; expired contracts and reluctance to extend by injunction; compensability of reputational and monetary loss by damages.
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30 April 2019 |
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High Court may inquire and appoint a relative manager where a person lacks capacity, subject to bond and reporting safeguards.
* Administration of estates – Persons of unsound mind – High Court may conduct judicial inquiry where no prior magistrate adjudication – Standard of incapacity: inability to manage self or affairs – Appointment of relative as manager – Safeguards: bond, restricted dealings, inventory and annual accounts.
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24 April 2019 |
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Employer held vicariously liable for employee’s reckless driving; plaintiff awarded proven special and substantial general damages.
Tort – Negligence – Motor accident caused by employer’s vehicle; vicarious liability of employer; contributory negligence burden on defendant; proof of special damages by receipts; assessment of general damages for grave physical injury and psychological trauma.
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17 April 2019 |
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Void sale and unlawful intermeddling defeat bona fide occupation; trial judgment declaring ownership and damages reversed.
Land law – validity of transaction in unregistered customary tenure (kibanja) – agreement of sale invalid where unsigned and sellers lacked authority; succession law – unlawful intermeddling; bona fide occupant (s.29(2)(a) Land Act) not available where occupation arises from void/illegitimate transaction; limitation defence cannot be raised for first time on appeal.
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12 April 2019 |
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A magistrate reversed his order setting aside an ex parte judgment with material irregularity; revision allowed and third parties must be joined.
Civil revision – Magistrate reversing own earlier order – Ex parte judgment set aside – Execution of magistrates’ decrees by High Court – Material irregularity – Right to be heard (audi alteram partem) – Joinder of third-party purchasers via third party notices.
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12 April 2019 |
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Applicant's counsel’s inadvertence constituted sufficient cause to set aside dismissal and reinstate the application.
Civil procedure – Order 9 r.23 CPR and s.98 CPA – Setting aside dismissal for non-appearance – 'Sufficient cause' – Counsel’s inadvertence/negligence – Reinstatement of application.
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11 April 2019 |
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Court set aside dismissal for non-appearance, finding counsel’s negligence and illness amounted to sufficient cause to reinstate the applicant's application.
* Civil procedure – Order 9 Rule 23 CPR and Section 98 CPA – setting aside dismissal for non-appearance – "sufficient cause" standard. * "Sufficient cause" – negligence or inadvertence of counsel can justify reinstatement to secure hearing on merits. * Proof of counsel’s illness – affidavit evidence may suffice; medical records not invariably required.
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11 April 2019 |
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Counsel’s inadvertence or illness can constitute sufficient cause to set aside dismissal and reinstate an application.
Civil procedure — Order 9 r.23 CPR — Setting aside dismissal for non-appearance — "Sufficient cause" — Counsel’s negligence, oversight or illness may constitute sufficient cause — Affidavit evidence admissible — Section 98 CPA — Reinstatement to be heard on merits.
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11 April 2019 |
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A registered title obtained prior to estate distribution may be cancelled where the transferee fraudulently procured registration.
Land law – Registration of Titles – Indefeasibility of title – Exception for fraud; Fraud in land transactions – definition, attribution to transferee and burden/standard of proof; Succession law – s.191 Succession Act – beneficiaries acquire no proprietary rights until distribution; Cancellation and rectification of title; Entitlement of purchaser in possession.
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11 April 2019 |
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Permanent Secretary lawfully interdicted an acting registrar pending investigations; interdiction is preliminary and need not precede full hearing.
Interdiction — authority to interdict by responsible officer; Public Service Standing Orders; distinction between interdiction and suspension/disciplinary sanction; right to be heard at investigatory/interdiction stage; supervisory relationship vs appointing commission; judicial review prematurity.
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11 April 2019 |
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Ex‑parte interlocutory orders founded on a revoked leave procedure were set aside; substantive judicial review struck out as time‑barred.
* Civil procedure – ex‑parte proceedings – exception to right to be heard; service and affidavit of service required. * Judicial review – leave procedure revoked – reliance on defunct rules renders proceedings misconceived. * Costs – interlocutory costs ordinarily abide the event; awarding costs in ex‑parte interlocutory proceedings without adversarial contest is improper. * Limitation – accrual of cause of action for judicial review; failure to apply for extension renders application time‑barred.
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11 April 2019 |
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A bus driver’s unsafe overtaking into the oncoming lane caused the collision; employer vicariously liable and plaintiff awarded damages.
* Tort — Negligence: overtaking into oncoming lane and duty to keep proper lookout. * Vicarious liability: employer liable for acts of driver within course of employment. * Contributory negligence/avoidable consequences: requirement to plead and prove; absence of pleading or expert proof fatal to defence. * Proof of special damages: need for strict proof but receipts and cogent evidence acceptable. * Assessment of general damages for multiple, permanent injuries.
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11 April 2019 |
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Administrator with possessory interest may sue in trespass; registered title remains indefeasible absent attributable fraud.
* Land law – Trespass – possessory action by beneficiary/administrator of co-owner; possession vs title
* Registered title – indefeasibility under Registration of Titles Act; cancellation/rectification only for fraud attributable to transferee
* Tenancy in common – co-owner may sue for trespass; unity of possession permits one co-tenant to enforce possessory rights
* Adverse possession/overriding interests – part-parcel adverse possession requires clear physical evidence predating registration
* Bona fide purchaser – constructive notice where inquiries are perfunctory; duty to investigate obvious anomalies
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11 April 2019 |
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Closure of plaintiff’s case after repeated adjournments was justified; retrial and re-opening refused; administrators substituted.
Civil procedure – forced closure of plaintiff’s case – Order 17 rule 4 – adjournments at party’s instance; Revision jurisdiction under s.83 Civil Procedure Act; Retrial and re-opening of case – exceptional relief; Public interest in expeditious trials; Substitution of deceased plaintiff with administrators.
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11 April 2019 |
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Registrar dealt with land in breach of an interim stay (contempt), but court declined to set aside the transfers.
* Judicial review – prerogative remedies – certiorari, mandamus – grounds: illegality, irrationality, procedural impropriety; * Registration of Titles Act – caveats (s.139, s.140) – lapse after 60 days and notice requirements; * Contempt of court – dealing with land contrary to interim stay; * Discretionary relief – refusal to set aside transactions to avoid further injustice; * Remedies – appropriate forum is determination of substantive dispute before setting aside transfers.
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10 April 2019 |
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Extension of time denied where unexplained delay and filing the wrong appeal showed no sufficient cause; costs awarded to respondent.
Civil procedure – Limitation of appeals under section 79 CPA – Extension of time requires showing "good cause"; "good cause" is fact-specific and flexible; ignorance of law/being unrepresented ordinarily not sufficient; filing wrong appeal and long unexplained delay defeat extension; costs awarded to respondent.
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4 April 2019 |
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Magistrate’s trespass judgment set aside due to an admitted authorising letter and jurisdictional and damages errors.
Evidence – Admissibility and weight of documentary evidence; estoppel by representation (Evidence Act s.114) – authorisation letter stopping author from denying its existence; Tort – trespass – improper application of strict liability where defendant acted on claimant's instruction; Civil procedure – magistrate’s pecuniary jurisdiction exceeded; Assessment of damages and interest; Remedy – setting aside judgment and permitting fresh suit in competent court.
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4 April 2019 |
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Court adjudged person of unsound mind, ordered treatment and directed medical officer to report to court under Mental Treatment Act.
Mental Treatment Act s.2(1) – Adjudication of unsound mind; evidence of ongoing psychiatric care and severe depression; judicial direction for medical report to court; applicant’s standing to seek estate management noted.
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4 April 2019 |
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A plaint may disclose a fatal-accident cause of action without expressly citing the Law Reform (Miscellaneous Provisions) Act.
Civil procedure – Order 7 Rule 11(a) – plaint must disclose cause of action; statutory citation not always required if facts disclose statutory claim; Law Reform (Miscellaneous Provisions) Act – fatal accident claims; effect of consent judgment/payment by some defendants on claims against a third party; pleading requirements for fatal accident claims (deceased’s income).
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4 April 2019 |
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Unlawful and malicious arrests, and malicious prosecution by police rendered the State vicariously liable for property loss; damages awarded.
• Constitutional and criminal procedure – arrest without warrant – requirement of reasonable and probable cause and presentation to court within 48 hours.
• Tort – malicious arrest and detention – absence of complaint or warrant and lack of probable cause.
• Tort – malicious prosecution – initiation and continuation of criminal proceedings without reasonable and probable cause, terminated in favour of accused (nolle prosequi).
• Vicarious liability – State/Attorney General liable for police acts leading to loss of property resulting from unlawful detention.
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3 April 2019 |
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Irregular vesting order declared null and void; main boundary-opening application ordered to proceed on merits.
Vesting orders – Registrar’s jurisdiction under the Registration of Titles Act – Orders made without jurisdiction are nullities – Court power to set aside illegal/null orders when illegality is brought to its attention – Section 33 Judicature Act – Boundary opening and survey applications.
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3 April 2019 |
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Bank held vicariously liable for its auctioneer’s wrongful sale; compensation, general damages, interest and costs awarded.
* Agency and vicarious liability – whether an auctioneer/bailiff retained to recover bank debts was an agent or independent contractor – control, contractual terms, integration and apparent authority tests. * Banking practice – debt recovery procedures, requirement to inform agent of payments and consequences of improper sale. * Damages – assessment of compensation for wrongful sale of property and award of general damages; appellate review of factual findings. * Pleading and proof – adequacy of negligence pleadings and effect of admissions/ex parte default by third party.
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2 April 2019 |
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Failure by a public officer to administer a statutory oath unlawfully deprived an elected councillor of office; mandamus and damages awarded.
Judicial review — limitation: accrual on last operative act; Administrative law — ministerial duty to administer oath under Local Government Councils Regulations; Procedural fairness — requirement to give reasons and avoid discriminatory treatment; Remedies — mandamus appropriate for compelling ministerial acts; Misfeasance in public office — damages for deliberate unlawful omission.
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1 April 2019 |
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Temporary injunction after final judgment unavailable; stay denied for failure to show imminent execution, security, or grounds of appeal.
Civil procedure – temporary injunction – not available after final judgment; Stay of execution pending appeal – prerequisites include notice of appeal, imminent threat of execution, security, likelihood of success and absence of unreasonable delay; failure to prove these requirements warrants dismissal.
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1 April 2019 |
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Appellant who financed purchase and construction holds equitable interest by resulting trust; respondent’s later allocation and occupation were wrongful.
Land law – municipal allocation of plots – timing of allocations; Resulting trust – where purchaser provides funds but title taken in another’s name; Evidence – corroboration and weight (building contract date); Trespass to land – remedies including declaration, accounting for rents, vacant possession, injunction and damages; Appellate review – re-weighing conflicting evidence.
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1 April 2019 |
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Appellant failed to prove ownership; locus in quo and extrinsic evidence showed the disputed strip was not purchased.
Land law – Sale of unregistered land; missing parcels clause – admissibility of extrinsic evidence, locus in quo inspection and parties’ subsequent conduct to determine boundaries; Evidence Act – parol evidence rule (ss.58, 92, 93) and exceptions; Contract interpretation – implying terms (business efficacy, officious bystander), corrective interpretation/rectification; contra proferentem as last resort; burden of proof on claimant of ownership.
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1 April 2019 |
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Appellate court upheld respondent's customary land claim despite locus in quo irregularity, dismissing the appellant's general ground of appeal.
* Customary land – ownership dispute – evaluation of oral evidence and corroboration by physical features (trees, graves, homestead). * Locus in quo inspection – scope and limits; inadmissible testimony from non-testifying persons. * Appellate review – duty to re-evaluate evidence; disregard of improperly admitted evidence under Evidence Act s.166. * Civil procedure – strike out of vague/general ground of appeal under Order 43.
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1 April 2019 |
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A registered co-tenant is entitled to partition in kind of his share absent proof of fraud or exceptional reasons blocking subdivision.
Property — Article 26 (right to property) — Certificate of title conclusive until fraud proved — Tenancy in common versus joint tenancy — Severance and partition rights — Right of a co-tenant to seek partition in kind absent exceptional reasons — Filing of a suit challenging title does not suspend registered rights without interim relief.
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1 April 2019 |
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Applicants built into a planned road reserve; demolition upheld and no compensation awarded.
Physical planning — Road reserves and setbacks — Planning scheme availability and constructive notice — Unauthorized erection within road reserve — Enforcement notices under Physical Planning Act and demolition powers under Public Health Act — No compensation for demolition of unauthorized structures.
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1 April 2019 |