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Citation
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Judgment date
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| August 2014 |
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Appellate court set aside an improperly recorded consent judgment and ordered a retrial due to absence of a proper signed agreement.
* Civil procedure – Appeals – commencement and limitation – Memorandum of Appeal, S.79 CPA – exclusion of time for uncertified records. * Consent judgments – requirements: clear agreement, ideally reduced to writing and signed; court must satisfy itself parties understand terms. * Review and inherent powers – S.82 and S.98 CPA; limits posed by functus officio; clerical error vs. misapprehension of material facts. * Decree must agree with judgment (O.21 r.6(1)); improperly recorded decrees may be set aside. * Judicial conduct – judicial officers must record clear, unambiguous orders and avoid derogatory language.
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29 August 2014 |
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Appeal allowed where trial court mis-evaluated evidence and failed to visit locus in quo; retrial ordered, costs to await outcome.
Land law – evidentiary evaluation – conflicting descriptions of parcel and boundaries – necessity of locus in quo visit where location and acreage disputed – misframing of issues – retrial ordered; costs order set aside.
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29 August 2014 |
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Appellant held tenant in tail and trespasser; general damages upheld, mesne profits reduced; respondents awarded costs.
Land law – succession to tenancy (tenant in tail) – pleadings binding parties – admissibility of spouse’s evidence – trespass and eviction after notice – mesne profits are special damages requiring pleading and proof – appellate interference with damages limited to misapprehension or wrong principle.
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29 August 2014 |
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The appellate court upheld the trial finding of the respondent’s land ownership, rejecting res judicata and affirming damages and costs.
Land dispute; res judicata—distinct parties; appellate re-evaluation of evidence; locus visit and boundary identification; proof on balance of probabilities; trespass damages; costs discretion (s.27 CPA).
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29 August 2014 |
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Findings based on unrecorded locus in quo observations are unsafe and warrant a retrial.
Civil procedure – locus in quo – failure to record observations or witness evidence at locus in quo; appellate review – findings must be supported by record; unrecorded vital evidence amounts to miscarriage of justice; retrial appropriate remedy.
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27 August 2014 |
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Registrar's unlawful cancellation and purchaser's bad faith registration rendered defendant's title void; plaintiffs' administration rights upheld.
Land registration – Registrar's cancellation of title – ultra vires and breach of natural justice; bona fide purchaser doctrine – notice, due diligence and fraud; succession and letters of administration; limitation bars recovery of land.
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26 August 2014 |
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Forgery of transfer documents and disguised loan transactions vitiated the plaintiff’s title; transfers cancelled and owner restored.
Land law – alleged sale v. disguised loan – forgery of transfer forms – electronic superimposition of signatures – invalid/irregular registration – cancellation of transfers – restoration of registered proprietor – aggravated damages and costs.
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25 August 2014 |
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Proceedings by LC II over urban land were void for lack of jurisdiction; retrial in a competent court ordered.
Local council jurisdiction – LC II limited to customary land; urban land falls outside LC II jurisdiction – proceedings null and void ab initio; appellate duty to determine jurisdiction; remedy is retrial in competent court; beneficiaries may sue without letters of administration; costs withheld where parties misled by counsel.
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22 August 2014 |
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Land
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22 August 2014 |
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Appellant’s extension encroached a pre-existing access; court upheld respondent’s perpetual right of use, not vacant possession.
Land law – access/right-of-way – existence of access shown in sale agreements and corroborated by witnesses; encroachment by purchaser’s extensions; remedy limited to uninterrupted use, not vacant possession; appellate review of locus in quo and documentary evidence.
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22 August 2014 |
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Judge recused due to perceived conflict of interest; file sent to Registrar for urgent contempt hearing and reassignment.
* Judicial recusal – perceived conflict of interest – relationship between counsel and judge’s former partner – perception of bias sufficient for recusal.
* Recusal applies to entire suit, not partial proceedings.
* Court administration – Registrar directed to hear contempt application expeditiously and reassign the file to another judge.
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22 August 2014 |
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Whether a contractual 5% monthly interest rate on a secured loan is unconscionable and what remedies a defaulting borrower faces.
Loan secured by deposit of title; default and remedies; enforceability of agreed interest; unconscionable interest rates; entitlement to principal and damages; disallowance of unproven ancillary costs (advocates, surveyor, farm upkeep).
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21 August 2014 |
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Borrower’s default permitted recovery of principal; court struck down 5% monthly interest as unconscionable and adjusted remedies.
* Contract law – breach of loan agreement – failure to repay secured loan and entitlement to principal and interest. * Equitable mortgage/caveat – use of land as security and attempts at realization. * Interest – court’s discretion to reduce or refuse enforcement of harsh or unconscionable contractual interest rates. * Evidence – disallowance of unproven ancillary claims (advocates’ fees, surveyors’ fees, farm expenses). * Civil procedure – dismissal for failure to prosecute; ex parte proof of counterclaim.
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21 August 2014 |
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Appellate court set aside judgment for erroneous finding of bona fide occupancy, improper locus evidence, wrong legal basis and unproved special damages.
* Land law – bona fide occupancy – requirements under s.29(2) of the Land Act – 12 years’ uninterrupted occupation prior to coming into force of the 1995 Constitution.
* Evidence – locus in quo – unsworn testimony and observations – inadmissible/reliance on such evidence is a serious irregularity.
* Registration of Titles Act s.178 – applies to deprivation by registration errors/fraud and to registerable interests, not to statutory occupational interests under the Land Act.
* Damages – special damages must be specifically pleaded, particularized and strictly proved.
* Weight of expert/survey evidence – court must consider and give reasons if it departs from such evidence.
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20 August 2014 |
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Purchaser at mortgage sale with registered title entitled to eviction, injunction and general damages; special damages and mesne profits not proved.
Land law – mortgage sale – purchaser at mortgage sale – registered transfer and certificate of title – indefeasible title (RTA s.59) – burden of proof (Evidence Act ss.106,110) – possession and eviction – permanent injunction – general damages awarded; special damages and mesne profits denied for lack of proof.
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18 August 2014 |
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Serious triable issues on spousal consent and mortgagee’s duty found; injunction granted to preserve status quo pending trial.
Mortgage law – spousal consent (Land Act s39; Mortgage Act s5 & s6) – mortgagee’s duty to ensure informed consent; Interlocutory injunction – test for a serious question to be tried, adequacy of damages and balance of convenience (American Cyanamid principles); Undue influence and constructive notice – suretyship, Barclays v O’Brien and Etridge principles; Competence of representative affidavit (Order 19 r.3 CPR).
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18 August 2014 |
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Court refused to declare the land family property but ordered re-registration giving equal 1/7 shares to the applicant and six children.
* Land law – family land – requirements for declaration under s.38A Land Amendment Act 2004 – ordinary residence and source of sustenance. * Children’s law – administration of a child’s property – Children Act welfare principles paramount when affecting a child’s property. * Constitutional law – equality under Article 33 and High Court’s jurisdiction under Art.139(1) and s.33 Judicature Act to grant equitable reliefs in absence of specific procedure. * Land registration – dealing with land partly registered in a minor’s name and consequential re-registration as tenants in common.
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15 August 2014 |
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Plaintiffs entitled only to Mailo title for specified home and graveyard; plots already sold to other Bibanja holders are excluded.
Land law – Kibanja/Mailo relationships – Agreement for carving portion of Kibanja – Specific performance – Reversionary interest excluded for plots sold to third-party Bibanja holders – Tenant-by-occupancy sales and consent requirements under Sections 34 and 35 of the Land Act – Bona fide purchaser protection.
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6 August 2014 |