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135 judgments found.
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August 2014
Whether a purported consent judgment without a signed agreement can be set aside when the decree misstates agreed terms.
Civil procedure
— Consent judgment — Validity where no written/signed agreement tendered — Court must ensure consent accurately recorded
— Appeals — Time limits and admission out of time — S.79(1),(2) and S.98 CPA — uncertified records and good cause
— Decree requirements — Decree must agree with judgment and specify relief — O.21 r.6(1)
29 August 2014
Failure to inspect the locus in quo and mis-evaluation of conflicting evidence in a land dispute required a retrial.
Civil procedure — Land disputes — Locus in quo inspection — Necessity where boundaries, acreage and descriptions conflict — Practise Direction 1 of 2007
Evidence — Evaluation of conflicting oral and documentary evidence — Requirement to frame correct issues and determine whether parties refer to same land
29 August 2014
Whether the appellant’s pleadings and conduct established tenancy and liability for trespass, damages and mesne profits.
Land law — Tenancy succession — Tenant in tail and succession to tenancy; binding effect of admissions in pleadings — Order 6 r.7 CPR
Civil procedure & Evidence — Competence of spouse as witness; admissibility of agent evidence; litigant bound by own pleadings despite counsel-drafted defence
Remedies — Damages and mesne profits — Mesne profits are special damages requiring pleading and proof; court discretion to assess fair mesne profits
29 August 2014
Appellate court upheld trial finding of land ownership; res judicata, locus visit, and damages were proper.
Civil procedure
— Appeal — First appellate court’s duty to re‑evaluate evidence — Assessment on balance of probabilities
— Res judicata — Requirement of same parties and application of section 7 Civil Procedure Act — Earlier judgment not a bar
Land law — Boundary disputes and locus visit — Court’s factual findings, admissibility of LC records, and damages for trespass
29 August 2014
Failure to record locus in quo observations relied on in judgment is fatal and warrants retrial before another magistrate.
Civil procedure
— Locus in quo — Failure to record observations and evidence relied on in judgment — Fatal irregularity and miscarriage of justice
— Appeal — Appellate court cannot uphold findings unsupported by the record — Necessitates retrial where findings stem from unrecorded evidence
— Remedies — Gross failure to observe locus in quo procedures — Retrial before another competent magistrate; costs to successful appellant
27 August 2014
Registrar's cancellation without court process was void; purchaser lacked bona fide protection due to notice, illegality and limitation.
Land law
— Registration — Registrar's power to cancel entries and requirement of High Court process and hearing
— Purchaser protection — Bona fide purchaser doctrine, notice, due diligence and registration after vendor's death
Limitation — Recovery of land — Application of 12‑year prescription to bar subsequent claims
26 August 2014
Court set aside forged transfers, restored original owner and awarded aggravated damages for fraudulent conveyancing.
Land law
— Transfer and registration — Electronic forgery of transfer forms and superimposed signatures — Effect: irregular and voidable transfers
— Caveats — Whether caveats were without reasonable cause — Caveats justified where transfer procured by fraud
Civil remedies — Damages for fraud — Award of aggravated damages and interest for wrongful deprivation of property
25 August 2014
LC II lacked jurisdiction over urban land; proceedings void ab initio and a retrial before a competent court was ordered.
Civil procedure
— Jurisdiction — Local Council II courts — Lack of jurisdiction over urban land disputes (Local Council Courts Act s.10; Third Schedule)
— Appeal — Duty of appellate court to consider jurisdiction of lower forum before deciding substantive issues
Succession/Property — Administration of estates — Estate and ownership disputes arising from proceedings in an incompetent forum require determination in a competent court
22 August 2014
22 August 2014
Purchaser who encroaches on a pre‑existing access infringes successors’ access rights; appropriate relief is perpetual use, not vacant possession.
Land law — Easements / Access rights — Whether a purchaser may obstruct an access shown in prior conveyance — Successors in title must respect pre‑existing access rights
Civil procedure — Appellate review — First appellate court’s duty to re‑evaluate evidence while giving regard to trial court’s observations
Remedies — Vacant possession versus declaration of right of use — Proper relief where an easement/right of access exists
22 August 2014
Judge recused for perceived conflict of interest arising from counsel's familial tie to judge’s former partner.
Judicial conduct — Recusal — Conflict of interest — Perceived bias sufficient to necessitate recusal
Civil procedure — Interim orders and contempt — Registrar directed to expeditiously hear contempt and reassign case to another judge
22 August 2014
Court enforces loan principal, reduces unconscionable contractual interest, and disallows unproven ancillary costs.
Contract law — Loan agreement — Breach for non‑repayment and entitlement to principal and damages
Property/security — Equitable mortgage/caveat — Limited remedies where land not registered and prohibition on self‑transfer to mortgagee's nominee
Interest — Contractual high rate — Court discretion to reduce unconscionable contractual interest rates
21 August 2014
Plaintiffs breached a secured loan; court reduced usurious contractual interest and awarded principal, interest, damages and costs to the defendant.
Contract — Loan agreement — Breach for failure to repay secured loan — Remedies including recovery of principal and interest
Interest — Usurious contractual rate — Court discretion to reduce harsh or unconscionable interest and award a just rate
Evidence — Recovery of ancillary costs — Requirement of proof for advocates’ fees, surveyors’ fees and farm maintenance expenses
21 August 2014
Respondent failed to prove bona fide occupancy; locus in quo unsworn evidence and damages awards were unsustainable.
Land law — Bona fide occupant — Requirement of uninterrupted occupation for 12 years before the 1995 Constitution under s.29 Land Act
Civil procedure — Locus in quo — Reliance on unsworn testimony at locus in quo is irregular and may vitiate findings
Remedies — Registration of Titles Act s.178 — Compensation limited to deprivation of registerable interests under the RTA
Damages — Special damages — Must be specifically pleaded, particularized and strictly proved
20 August 2014
Registered title and uncontradicted proof entitled the purchaser to eviction and injunction; special damages and mesne profits denied for lack of proof.
Land law — Registered title — Indefeasibility under Registration of Titles Act s.59 and effect of registered certificate of title — Proof and exceptions
Evidence — Burden of proof — Effect of uncontroverted evidence and statutory shifting of burden (Evidence Act ss.106 and 110)
Remedies — Eviction and injunction — Requirement to prove special damages and mesne profits with strict documentary or evidential support
18 August 2014
Whether mortgages on matrimonial homes were valid given disputed spousal consent, undue influence, and the mortgagee’s statutory duties.
Land law — Mortgages of matrimonial homes — Spousal consent and compliance with Mortgage Act s.5 and s.6
Equity — Undue influence and constructive notice — Bank’s duty to inquire and ensure independent advice for sureties (Barclays v O’Brien; Etridge)
Civil procedure — Interlocutory injunctions — Serious question to be tried; irreparable harm and balance of convenience (American Cyanamid principles)
18 August 2014
Court denied family‑property declaration but authorised equal 1/7 tenancies for six children, prioritising children’s welfare and equality.
Land law — Family property — Definition under s.38A Land Amendment Act 2004 — Ordinary residence and sustenance requirement
Children law — Administration of child’s property — Welfare principle paramount in decisions affecting a child’s property (Children Act s.3; P3(1)(b))
Constitutional law — Equality — Article 33(4) supporting equal economic opportunities for girl children and justification for equitable re‑allocation of interests
15 August 2014
Whether an agreement to carve off land conferred Mailo title over plots already sold to third‑party bibanja holders.
Land law
— Kibanja and Mailo interests — Scope of agreement to transfer reversionary interest under a measured carving out — Interpretation of written agreement
— Sale by tenant by occupancy — Validity and effect of sales without landlord's consent — Land Act s.34(3) and s.35(2)
Remedies — Specific performance — Limited grant of Mailo title where reversionary interests have been partially alienated
6 August 2014
July 2014
Appellate court allowed appeal: trial magistrate misdirected on evidence and failed to visit locus; appellant declared owner.
Civil procedure — Appeal — Evaluation of evidence — Appellate court review where trial court misdirected on documentary and oral evidence
Evidence — Attested documents — Proof and verification of thumb impressions; Evidence Act ss.60, 61, 69, 72(2)
Land law — Procedure in land disputes — Duty to visit locus; failure to visit may be fatal irregularity
24 July 2014
Application to remove long-standing caveat dismissed for lack of statutory notice and wrong defendant sued.
Registration of Titles Act — Caveat — lapse under s.149 requires service of statutory notice and inaction; no automatic expiry. Succession law — Customary heir not necessarily legal representative or sole beneficial owner; proper party must be appointed before suit
Procedure — appoint legal representative of deceased caveator and serve notice to show cause prior to seeking removal of caveat. Property law — Caveat is an encumbrance on the registry certificate and does not automatically bar issuance of a duplicate certificate of title
21 July 2014
Judicial review refused where the Land Act provides an available appeal against the Commissioner's cancellation of title.
Administrative law — Judicial review — Availability only where no alternative statutory remedy exists
Land law — Registration of titles — Whether decisions made under s.165 RTA attract an appeal under s.91(10) Land Act
Civil procedure — Inherent jurisdiction — Court may only invoke inherent powers to override specific statutory remedies when no adequate alternative exists
14 July 2014
Company breached an injunction; company fined, directors not held in contempt without proof.
Civil procedure — Contempt of court — Breach of injunction by a corporation — Liability of company and accountability of officers — Order 41 r.5 CPR; Judicature Act s.14; CPA s.98
11 July 2014
Plaintiff failed to plead sufficient particulars or establish that the land remained part of the deceased’s estate; suit against 6th defendant dismissed.
Civil procedure — Pleading
— Whether a plaint discloses a cause of action — Order 7 Rule 11 CPR — Requirement to determine cause of action from plaint and attachments
— Particulars of fraud — Mandatory requirements of Order 6 Rule 3 CPR when alleging fraud
Succession — Administrator’s rights — Necessity to plead that disputed land formed part of the deceased’s estate at material time
9 July 2014
Court upheld sale agreement despite mutual mistake, ordering equitable apportionment and survey instead of rescission.
Contract law
— Sale of land — Validity and enforceability where parties share a common mistake as to acreage — Mistake not necessarily voiding contract where subject matter exists and parties are partly at fault
— Capacity/Illiteracy — Illiterates Protection Act — Requirement that contents be shown read and understood; late-raised objections may be rejected
Remedies — Equitable relief — Court may order apportioned possession, survey and transfer rather than rescission or absolute specific performance
8 July 2014
Temporary injunction refused where application relied on different land, unpleaded serious allegations, and lacked required proof of entitlement.
Civil procedure — Interim injunctions — Preservation of status quo and requirement of a serious question to be tried/prima facie case
Land law — Title cancellation — Allegations of fraud required for remedies under s.176 Registration of Titles Act
Civil procedure — Interlocutory relief — Effect on third parties and necessity to identify and plead material facts in main suit
7 July 2014
June 2014
Court granted interim injunction preventing cancellation of registered title pending substantive challenge, citing need for notice and hearing.
Land law — Registration and titles — Temporary injunction to restrain cancellation of registered title — Requirement of notice and hearing — Land Act ss 91, 140(2)
24 June 2014
Court ordered production of power of attorney and accounts; Next Friend upheld on medical evidence of mental infirmity.
Civil procedure
— Order 20 r.1 — Account — Court must order proper accounts where plaint prays for account unless defendant establishes a preliminary question to be tried
— Order 32 r.15 — Next Friend for person with mental infirmity — Medical evidence sufficient to establish incapacity due to infirmity (distinct from unsoundness of mind requiring statutory inquiry)
Evidence/mental capacity — Distinction between unsoundness of mind (Mental Treatment Act inquiry) and mental infirmity from old age — formal adjudication not required for infirmity
23 June 2014
Failure to visit the locus and delegating boundary determination to emissaries vitiated the trial in a land encroachment dispute.
Land law — Boundary disputes — Locus in quo — Necessity of a site visit in encroachment cases
Civil procedure — Delegation of judicial function — Appointment of court emissaries to determine boundaries — Irregularity vitiating proceedings
17 June 2014
Proceedings to remove a caveat are interlocutory, not recovery of land, and are not barred by the 12‑year limitation.
Civil procedure — Service of process — Applicability of Order 5(1)–(3) CPR to chamber summons — Distinction between substantive suits and interlocutory applications
Land law — Caveats — Removal of caveat vs recovery of land — Whether removal proceedings are barred by Limitation Act s.5
16 June 2014
Counsel’s negligence can be sufficient cause to set aside a dismissal if the applicant promptly seeks reinstatement.
Civil Procedure
— Setting aside dismissal for non-appearance — Whether negligence of counsel amounts to sufficient cause — O.9 R.23 CPR
— Reinstatement procedure — Requirement of prompt action and genuine interest by applicant — Evidence of filing two days after dismissal
16 June 2014
Commissioner’s reopening of a matter decided by predecessor was ultra vires and quashed on judicial review.
Administrative law — Judicial review — Reviewability of administrative communications under section 91 Land Act
Land law — Commissioner powers — Reopening a matter decided by predecessor as ultra vires and functus officio
Administrative remedies — Certiorari, prohibition and mandamus to quash and restrain unlawful administrative proceedings
16 June 2014
Default judgment set aside where defendant showed sufficient cause and co-defendant was not served; unliquidated damages must await formal proof.
Civil Procedure — Default judgment — Setting aside — Service and sufficient causeCivil Procedure — Order 9 rule 6 CPR — Liquidated demand and interlocutory judgment for pecuniary damagesCivil Procedure — Execution — Stay of execution — Lack of evidence to support stay
16 June 2014
Part of a plaint alleging the plaintiff is lessee was struck out as res judicata, but other contractual and equitable claims remain.
Civil procedure — Order 7 r.11 (rejection of plaint) — distinction between inherent defects and preliminary points of law; Res judicata — section 7 Civil Procedure Act — identity of parties, identity of issue, prior final decision; Specific performance, recovery of premium and equitable interest not necessarily barred by prior decree on title/lease invalidity.
10 June 2014
May 2014
Defendant ordered to pay plaintiff's costs where her delay and refusal to remove caveat necessitated the suit.
Civil Procedure Act s.27 — costs generally in the court's discretion; costs follow the event
Costs — conduct of parties (delay, refusal to execute transfer/mutation, lodging and not withdrawing caveat) relevant to exercise of discretion. Consent judgment — unresolved issue of costs determined by court exercise of discretion
28 May 2014
Court allowed joinder of the registered proprietor by amendment to adjudicate alleged fraudulent land transfer.
Civil procedure
— Amendment of pleadings — Adding a party and scope of amendment under Order 6 r.19 and Order 1 rr.10(2)(b) & 13 CPR
— Prejudice and delay — Amendment may be refused only where it causes irremediable prejudice not compensable by costs
Property law — Title disputes — Joinder of registered proprietor necessary where allegations of fraudulent transfer require investigation of title nexus
27 May 2014
Temporary injunction granted to preserve land pending trial where Certificate of Title establishes a prima facie ownership case.
Civil procedure — Interim relief — Temporary injunction — Prima facie case, irreparable injury and balance of convenience — Registration of Titles Act: Certificate of Title as conclusive evidence of ownership
2 May 2014
April 2014
Applicant failed to establish grounds for review; technical affidavit defects and counsel mistakes were insufficient.
Civil procedure
— Review (Order 46 r.1 CPR) — Grounds: discovery of new evidence, mistake apparent on face of record, or other sufficient reason
— Affidavits — Jurat/date omission — Technical irregularity not fatal; substantive justice prevails
Probate/Estate law — Beneficiaries — Suit without letters of administration — Beneficiary can sue or be sued to protect estate interest
30 April 2014
Originating summons unsuitable to resolve disputed factual issues on validity of land sale and entitlement to compensation.
Civil procedure — Originating summons — Appropriateness where disputes involve contested factual questions — Order 37 CPR
Land law — Sale of land — Effect of expired lease on vendor’s ability to pass title and entitlement to compensation
30 April 2014
Applicant failed to prove entitlement to consequential registration under s.177 RTA; application to rectify title and remove caveats dismissed.
Land law
— Registration of Titles Act s.177 — Consequential orders to cancel or substitute certificates of title require prior recovery of the specific land from the registered proprietor
— Caveats — Removal of caveats and cancellation of title require court order, adequate proof (fraud or mistake) and fair hearing of caveator
Administrative law/Registration — Registrar of Titles — Registrar may decline registration absent a specific court decree directing substitution of title
30 April 2014
Loan secured by land was fraudulently converted to title; subsequent transfer was tainted by fraud and damages awarded.
Property law — Transfer of land — Whether transaction was sale or loan — Fraudulent conversion of security into title
Evidence — Handwriting expert evidence — Weight and reliability — Need to authenticate specimen signatures before reliance
Remedies — Bona fide purchaser doctrine — Notice and participation in fraud — Damages and mesne profits; cancellation considerations (Registration of Titles Act s.176)
30 April 2014
Whether the plaintiff’s construction breaching quiet enjoyment justified the defendant’s rescission and discharge of further obligations.
Contract law
— Landlord and tenant — Covenant of quiet and peaceful possession — Breach as condition justifying rescission
— Rescission and termination — Effect of rescission on future obligations — Discharge of unpaid rent, notice and repair obligations
Remedies — Damages and costs — Damages follow the event where rescission is valid
30 April 2014
Consequential cancellation/substitution under s.177 RTA requires clear decree identifying the land and registered proprietor and proper evidential support.
Land law — Registration of Titles — Consequential orders under s.177 RTA — Requirement that applicant must have recovered the land by proceedings from the registered proprietor
Civil procedure — Evidence and pleadings — Fraud allegations affecting title require pleading, evidence and opportunity for testing (cross‑examination)
29 April 2014
An appeal against an interlocutory magistrate’s order without statutory leave is incompetent and must be struck out.
Civil procedure
— Appeals from magistrates’ courts — Leave required for Orders under Order 52 CPR — Order 44 r 2–3 CPR
— Competency of appeal — Failure to obtain required leave renders appeal incompetent — CPA s 77
— Procedural application for leave — Oral/unrecorded application ineffective
22 April 2014
A beneficiary may sue an administrator to recover land; the claim was timely and will‑attestation is for trial.
Limitation — Recovery of land — Accrual of cause of action upon adverse transaction (sale) — Limitation Act ss.5,11,20
Succession — Locus standi of beneficiaries — Beneficiary’s right to sue an administrator to protect estate interest — Succession Act s.264
Wills — Validity/attestation — Challenge is a factual issue to be determined on evidence
19 April 2014
The applicant's purchase void as vendor lacked title; restitution and damages awarded against the vendor.
Civil procedure — Judgment on admission — Order 13 r.6 CPR — Requirement of an application and recorded order for judgment on admission
Property law — Title — Effect of prior registered sale on subsequent purported transfer — Vendor without title cannot pass good title
Tort/Restitution — Misrepresentation and unjust enrichment — Remedy by restitution and damages
16 April 2014
Non-monetary spousal contributions do not create beneficial interest absent express trust; registration was tainted by fraudulent caveat removal.
Land law — Trusts and equitable interest — Certainty of intention, subject matter and objects required to create a trust or beneficial interest in land
Land registration — Caveats and removal — Irregular removal of caveat and concurrent registration may amount to fraud
Family law — Matrimonial property — Subsistence of marriage does not automatically convert property into joint matrimonial property absent legal foundation or dissolution proceedings
16 April 2014
The applicant cannot hold the director personally liable; landlord awarded re‑entry, arrears, mesne profits and damages.
Land law / Tenancy — breach for non‑payment of rent — landlord’s right to re‑enter and claim vacant possession; mesne profits for post‑judgment occupation. Company law — corporate veil — director’s signature and issuance of cheques do not automatically create personal liability absent guarantee or lifting of the veil. Civil procedure — default and failure to produce evidence — court may proceed under CPR r.0.17(4)
Remedies — arrears, mesne profits, general damages, costs and interest
15 April 2014
Whether the first defendant assumed liability for prior government land acquisitions; claim against it dismissed.
Land law — Acquisition and compensation — Succession of liabilities under statutory transfer — Whether UNRA assumed RAFU/Government liabilities under the UNRA Act and Transfer Regulations 2012
Civil procedure — Pleadings and preliminary objections — Cause of action — Whether the plaint discloses a cause of action against a statutory body and whether mistaken party sued amounts to abuse of process
14 April 2014
Appellate court overturned the dismissal, finding appellant’s ownership proven and respondent liable for trespass; appeal allowed with costs.
Civil procedure — Appeal — Powers of High Court on appeal — Re‑evaluation of evidence and determination of issues
Land law — Ownership and possession — Proof of title/interest and trespass — Requirement to establish coherent chain of ownership
Evidence — Documentary evidence — Interpretation and admissibility of conflicting written acknowledgements and extrinsic evidence
11 April 2014
Applicant in possession entitled to temporary injunction to preserve land pending determination of the main suit.
Land law — Interim relief — Temporary injunction pending main suit — Preservation of status quo
Civil procedure — Interim injunction — Prima facie case, irreparable harm, balance of convenience — American Cyanamid principles
11 April 2014