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Citation
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Judgment date
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| December 2015 |
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Registered title is conclusive; absent proof of fraud plaintiffs are bona fide purchasers and defendant liable for trespass.
* Registration of Titles Act – certificate of title is conclusive evidence of ownership; can be impeached only for limited grounds such as fraud. * Burden of proof – challenger must strictly prove fraud and attribute it to transferee to impeach title. * Bona fide purchaser – purchaser who exercised due diligence and had no notice of fraud acquires indefeasible title. * Registered proprietor’s possession – certificate of title confers legal possession and standing to sue in trespass. * Remedies – eviction, perpetual injunction, general damages, costs and interest. * Procedure – refusal to reopen hearing to admit irrelevant title where subdivision rendered earlier title obsolete.
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18 December 2015 |
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Absence of a current practising certificate does not automatically invalidate an advocate’s affidavit or bar swearing as a witness.
* Advocates – practising certificate – absence of current PC does not invalidate affidavits or preclude swearing evidence; s.14A Advocates (Amendment) Act 2002. * Evidence – affidavit contents on legal issues within advocate’s personal knowledge – not hearsay or contentious under Order 19 CPR. * Burden of proof – party alleging absence of PC must prove it. * Civil procedure – revision jurisdiction (s.83 CPA) – procedural flexibility; formal motion not strictly required.
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16 December 2015 |
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A land recovery suit filed after twelve years was dismissed as time-barred; injunctions did not suspend limitation.
Limitation of actions – recovery of land – section 5 Limitation Act (12-year bar) – requirement to plead exemption (Order 7 r.6 CPR) – temporary injunctions/consent orders do not stop limitation; adverse possession (s.11) inapplicable where claimant never in possession.
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15 December 2015 |
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High Court set aside a biased trial judgment, held appellant in adverse possession and declared respondents trespassers; costs awarded.
Civil procedure – appeal; interlocutory objections – deceased parties and limitation; Evidence – misappreciation, judge descending into arena; Res judicata – prior 1982 suit; Possession – adverse possession and limitation; Remedy – trial judgment set aside, plaintiff declared owner, costs awarded.
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10 December 2015 |
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Appeal dismissed: credible possession and sale found; defendants' recovery claim time‑barred under limitation.
Appeal — re-evaluation of evidence and credibility; sale versus mortgage; adverse possession; limitation (s.5 Limitation Act) — no bias or miscarriage of justice.
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8 December 2015 |
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Appellate court upheld trial finding that unchallenged sale documents and consistent evidence established ownership; appeal dismissed with costs.
* Land law – proof of ownership – balance of probabilities – unchallenged documentary evidence as credible proof of title. * Evidence – evaluation on appeal – weight of consistent evidence versus contradictory defence. * Civil procedure – locus in quo – visit not mandatory; required only where evidence depends on observable physical features. * Appeal – miscarriage of justice – misdirection/non-direction must be shown to succeed.
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4 December 2015 |
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Application for committal for contempt dismissed for lack of evidence; unsigned settlement proposal not contempt.
Contempt of court — scope and classification; draft/unsigned consent judgments — not disobedience of injunction; out-of-court settlements permitted; allegations of water disconnection require evidence and are for police/water provider; harassment/threats fall outside injunction remedies.
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4 December 2015 |
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Respondents' non‑compliance with judgment constituted contempt; subsequent compulsory acquisition was unlawful and void.
Contempt of court — failure to comply with judgment and writ of mandamus; Compulsory acquisition — constitutional requirement of prior prompt payment of compensation; Remedies for civil contempt — purge by compliance, committal, sequestration, fines; Invalidity of statutory acquisition where constitutional conditions not satisfied.
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2 December 2015 |
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Contempt proceedings arising from a court’s decree take precedence and the court that issued the decree retains jurisdiction to hear them.
Civil procedure – contempt of court – priority of contempt proceedings over other applications including stay of execution – jurisdiction of court which passed decree to deal with execution-related matters – functus officio not a bar to contempt proceedings – pending appeal not an automatic stay.
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1 December 2015 |
| November 2015 |
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Plaintiffs' prior purchases and occupation established fraud in the respondent's registration, entitling cancellation and damages.
Land law – purchaser's duty of inquiry; registration of title – indefeasibility subject to fraud; occupation and prior unregistered sale as notice; tenants' right of first option (Land Act ss.31,36); cancellation of title and remedies (injunction, damages, orders to Registrar).
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30 November 2015 |
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Vesting order set aside for error on face of record and denial of hearing to occupants.
Land — Vesting orders — Review — Error apparent on face of record where sale agreement describes different plot than vested; Occupation — persons in physical possession condemned unheard constitute "persons aggrieved"; Natural justice — failure to join/notify occupants — ground for review; Remedies — setting aside vesting order and cancelling registration.
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30 November 2015 |
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Claim for land trespass barred by res judicata; locus visit properly conducted; appeal dismissed with costs.
* Civil procedure – Res judicata – Suit concerning same land previously adjudicated – prior final judgment binds parties and their privies.
* Evidence – Locus in quo – Proper conduct and admissibility of observations and local testimony.
* Procedure – Duty to peruse earlier judgment when pleading res judicata, but admissions and record may suffice to establish the bar.
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24 November 2015 |
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Property not deemed matrimonial, hence spousal consent not mandatory; mortgage deemed valid.
Property law - spousal consent - mortgage of matrimonial home - whether spousal consent was given - validity of mortgage transaction.
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19 November 2015 |
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A registered proprietor is entitled to eviction, injunction and damages where an unauthorised occupier trespasses on titled land.
Land law – Certificate of title – Section 59 Registration of Titles Act – certificate as conclusive evidence of ownership; Trespass – unauthorised entry and continuing tort; Remedies – eviction, removal of structures, permanent injunction, general damages and costs; Quantum – court’s discretion where plaintiff gives no specific quantum evidence.
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10 November 2015 |
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Late deposit cannot revive a suit dismissed for failure to furnish security; counsel’s affidavit lacking personal knowledge is inadequate.
Civil procedure – Order 26 r.2 CPR – security for costs – failure to furnish security automatically dismisses suit; remedy under r.2(2) requires proof of sufficient cause; affidavits must show personal knowledge or disclose sources; late deposit after dismissal does not revive the suit.
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5 November 2015 |
| October 2015 |
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Whether an unlawfully occupying defendant who converts lessee’s machinery is liable to eviction, mesne profits and damages.
Land law – trespass to leased land; conversion of chattels/plant; burden of proof for insolvency allegations; remedies: eviction, account of profits/mesne profits, exemplary and general damages; interest and costs.
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30 October 2015 |
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Plaintiff’s claim that defendant had no caveatable interest was barred by res judicata; suit dismissed with costs.
Civil procedure – res judicata – issue directly and substantially in issue in former suit; caveatable interest – prior adjudication that defendant had caveatable interest; cause of action must exist at filing; Order 7 r.11(d) – plaint discloses no cause of action; Section 7 Civil Procedure Act.
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22 October 2015 |
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Application dismissed for being served out of time without applying for the statutory extension.
* Civil procedure – Service of hearing notices/applications – Order 5 r.1 CPR – 21-day service requirement and 15-day extension window – failure to comply renders proceedings incompetent and liable to dismissal.
* Evidence – inadmissibility of factual assertions made orally at the bar – material facts relied upon to excuse non-compliance must be on affidavit.
* Procedure – date of filing/sealing by Registrar constitutes start of time for service.
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22 October 2015 |
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Plaintiff's challenge to the bank's caveatable interest is barred by res judicata; suit dismissed with costs.
* Civil procedure – res judicata – application of Section 7 Civil Procedure Act – matter directly and substantially in issue in earlier proceedings bars subsequent suit.* Land law – caveat – prior ruling adjudicating a bank's caveatable interest precludes relitigation by the landowner.* Cause of action – must exist at time of institution of suit; future changes cannot create a prior cause of action.* Civil Procedure Rules Order 7 r.11(d) – plaint to be rejected if barred by law.
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22 October 2015 |
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Registration obtained by misrepresenting succession constituted fraud; title cancelled and plaintiff granted damages and costs.
Land law – succession and registration – fraud in procurement of title; customary heir vs. legal administration; cancellation of fraudulently obtained certificate of title under the Registration of Titles Act; entitlement to declarations, injunctions, damages and costs.
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22 October 2015 |
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Court reinstated dismissed land suit under Order 9 r.23 CPR, citing right to be heard, but awarded costs to respondents.
Civil procedure – Reinstatement of dismissed suit (Order 9 r.23 CPR) – "Sufficient cause" for non-appearance – conflicting affidavits and absence of cross-examination – duty of counsel to notify withdrawal – late service of summons (Order 5 r.2–3 CPR) – discretion to order costs.
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16 October 2015 |
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Leave to appeal denied where res judicata applied, no arguable grounds shown, and alleged payment must be enforced separately.
• Civil procedure – res judicata – dismissal upheld and application for leave to appeal considered. • Appeal – leave to appeal – criteria: prima facie grounds, reasonable prospects, no dilatory conduct. • Execution – High Court cannot execute or give effect to findings in superior court judgments; enforcement must follow proper procedure. • Evidence – allegations of fraud already raised and adjudicated; finding of pari delicto undermines challenge.
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16 October 2015 |
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Court entered judgment on admission where government correspondence unequivocally admitted liability to pay land compensation.
Land compensation – Judgment on admission – Order 13 r.6 CPR – Government correspondence as unequivocal admission – valuation accepted – payment via counsel – costs follow the event.
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15 October 2015 |
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A binding land sale arose on bank acceptance and deposit; unilateral cancellation was unlawful and specific performance plus damages awarded.
Contract law – offer and acceptance; sale of land – deposit creates equitable interest; agency – limits of agent's authority; rescission – unlawful unilateral cancellation; remedy – specific performance and damages for breach of land sale contract; breach of court order and effect of caveat.
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14 October 2015 |
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Joint defence, one‑day late filing and unpaid fees held not fatal where court exercised discretion and denials met pleading rules.
Civil procedure – multiple defendants – permissibility of joint written statement of defence; Civil procedure – time for filing defence – consequences of one‑day late filing and plaintiff’s failure to proceed ex parte; Court fees – non-payment at filing – court’s discretion to allow belated payment under Judicature (Court Fees) Rules; Pleadings – denials and traversal – compliance with Order 8 r 3.
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5 October 2015 |
| August 2015 |
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Appellate court set aside irregular locus-in-quo findings, reversed unsupported damages, and remitted the trespass dispute for retrial.
Land law – trespass – locus in quo – irregular locus visit where court acted as investigator and admitted non-witness evidence vitiates proceedings; parties and misjoinder – failure to strike out a non-joined defendant renders findings against it void; counterclaim – must be treated as independent cross-action and adjudicated; damages – general damages require evidentiary basis even in trespass claims; remedy – remittal for retrial where record inadequate.
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28 August 2015 |
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Fraudulent registration of a land title may be cancelled and the original owner’s title reinstated with damages and injunctions.
Land law – Certificate of title prima facie conclusive but defeasible for fraud; Fraud – forged instrument/false representation vitiates registration; Registration of Titles Act s.177 – High Court power to cancel and reinstate title; Remedies – cancellation, reinstatement, injunctions, compensatory damages, interest and costs.
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27 August 2015 |
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Government’s erroneous land re‑subdivision without prompt compensation warranted damages, interest and costs to the plaintiff.
Land law – compulsory acquisition/land restructuring – erroneous deed print and shortfall of 176.7 hectares; entitlement to compensation, general and exemplary damages; interest on awards (25% for damages; 8% on consented compensation); costs follow the event.
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25 August 2015 |
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Plaintiff failed to prove fraud; defendant held indefeasible title as bona fide purchaser and suit was dismissed.
Land law – title and indefeasibility – bona fide purchaser for value without notice – fraud allegations require strict proof – effect of prior valid transfers on administrator’s claim; caveat and interference with possession – damages for inconvenience.
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25 August 2015 |
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A registered title obtained by fraud is invalid and may be cancelled in favour of prior occupants’ title.
* Land law – competing registered titles – priority of title under Section 64 RTA – exception for fraud.
* Fraud in land registration – manipulation of survey/Kalamazoo entries and Land Office documents vitiates title.
* Limitation – trespass as continuing tort – counterclaim not time-barred.
* Remedies – cancellation of title obtained by fraud; declaration of ownership and costs; no general damages absent proof.
* Transitional institutional competence – ULC authority to extend lease preserved by transitional constitutional/statutory provisions.
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20 August 2015 |
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Ex parte judgment and imprisonment set aside for failure to comply with Civil Procedure Rules on service and hearing.
Civil procedure – Ex parte judgment – Requirement of proof of service of summons/notice of hearing (O.9 r.20 CPR) – Affidavit of service – Wrong application of O.9 r.1 and r.11 – Procedural illegality – Setting aside judgment and execution – Remittal for retrial inter partes.
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14 August 2015 |
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A contested eviction involving a caveat, injunction and fraud allegations cannot be decided by notice of motion and affidavits.
* Civil procedure – jurisdiction and procedure – use of notice of motion and affidavit evidence versus plaint/originating summons for contentious matters
* Judicature Act s.33 – application must be properly brought before High Court
* Eviction – presence of caveat, injunction and pending suit renders eviction contested and triable
* Pleading – allegations of fraud require particulars and oral evidence; not resolvable by affidavit
* Order 52/Originating summons – intended for simple, non‑contentious matters only
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6 August 2015 |
| July 2015 |
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Leave to appeal refusal of a de novo hearing denied; successor judge cannot order de novo proceedings absent consent or missing record.
Civil procedure – leave to appeal – applicant must show prima facie/arguable grounds, reasonable prospect of success and no dilatory conduct; de novo proceedings – successor judge ordinarily may not order hearing de novo where predecessor had control; Order 18 r.11(1) CPR – proceed from stage left by predecessor; de novo only if parties agree or record/evidence missing.
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14 July 2015 |
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A sale of land declared a protected wetland is illegal and frustrated, entitling refund under the parties’ contract clause.
* Constitutional and environmental law – Wetlands protected under Articles 237(2)(b), 39 and 245 – alienation and commercial exploitation prohibited.
* Contract law – frustration due to government intervention; illegality rendering sale unenforceable.
* Evidence – agreed documents substitute for oral testimony; appellate court may re-evaluate documentary evidence.
* Contractual remedies – Clause entitling refund where sale is successfully challenged by third parties enforceable.
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10 July 2015 |
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Failure to plead when alleged fraud was discovered renders land claim time-barred; plaint rejected and suit dismissed.
* Limitation law – actions in tort and recovery of land (Sections 3 and 5 Limitation Act) – fraud exception (Section 25) – requirement to plead date of discovery per Order 7 r.6 CPR; failure to plead bars reliance on fraud exception. * Expropriated Properties Act – appeals against Minister’s repossession decision must be lodged within 30 days (Section 15) – failure renders challenge time-barred. * Civil Procedure – plaint liable to rejection under Order 7 r.11(d) CPR where suit is statute-barred.
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9 July 2015 |
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Leave to appeal refused where omission and slight delay in amended plaint caused no prejudice and raised no substantial legal issue.
Civil procedure – leave to appeal – prima facie grounds; Amendment of pleadings – leave to amend and effect of omission of a plaintiff; Time directives and case management – directory versus peremptory nature; Prejudice principle – slight delay without prejudice not fatal; Pleadings – O6 rr.20, 21 and r.25 CPR; Access to justice and substantive hearing over technical procedural lapses.
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8 July 2015 |
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Collateral attack on a valid execution decree failed for lack of clear evidence of fraud; plaint dismissed as frivolous.
Land law – execution and sale – collateral challenge to ex parte decree – fraud on the court must be strictly pleaded and proved; res judicata and requirement to set aside decree under Order 36 r.11; Order 7 r.11 dismissal for frivolous and vexatious plaints; effect of post-sale memorandum of understanding; invalidity of transactions by non-owners.
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7 July 2015 |
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Mortgage founded on forged documents is void; purchaser who failed due diligence is not bona fide and bank must compensate purchaser.
* Land law – mortgage and transfer – forgery and fraud – handwriting expert evidence establishing forgery; mortgage void under s.147 Registration of Titles Act.
* Equitable remedies – consent judgment effect – cancellation of title and restitution to registered proprietor.
* Purchaser’s duty – bona fide purchaser for value without notice requires due diligence (searches, inspection); failure negates protection.
* Restitution/compensation – refund of purchase price and interest where sale founded on nullified mortgage; apportionment of costs and post-judgment interest.
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1 July 2015 |
| June 2015 |
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Dismissal for want of prosecution set aside; interim orders restored and costs awarded against the negligent advocates' firm.
• Civil procedure – Order 9 r.23 CPR – setting aside dismissal for want of prosecution – sufficient cause; • Interim relief – restoration of interlocutory and interim orders pending main suit; • Effect of intervening events (mortgages, subdivision, compensation) on injunctive relief; • Solicitor negligence – whether advocate’s default should be visited on client; • Costs – allocation against negligent advocate’s firm.
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24 June 2015 |
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Court allowed extension to file a counterclaim despite delay, permitting it to be heard in the same suit; costs to applicant.
Civil procedure — Enlargement of time to file counterclaim — Order 51 r.6 CPR; Counterclaim — inclusion in same suit challenging sale alleged to be fraudulent; Discretionary relief despite delay; Avoidance of multiplicity of proceedings; Costs for dilatory conduct.
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24 June 2015 |
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Long, open and hostile possession for over twelve years extinguished registered title; plaintiff entitled to certificate and injunction.
Land law – Adverse possession against registered title; Limitation Act (12-year period) and effect on recovery actions; Bona fide occupant under Land Act s.29; Indefeasibility exception; Evidential burden in proving sale and possession.
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23 June 2015 |
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Plaintiff proved ownership of unregistered land via a deed of gift; 1st defendant breached rights and was ordered to pay damages and be restrained.
Land law – donation inter vivos versus contract – transfer, acceptance and possession as proof of title to unregistered land; Evidence – parole evidence rule and weight of uncontroverted oral testimony and documentary exhibits; Damages – proof of special damages (strict pleading and evidence), refusal of exemplary damages without proof of calculative gain; Remedies – declaratory relief and permanent injunction; Liability – non‑party defendants cannot be held liable for breach of a contract to which they were not privy.
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18 June 2015 |
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A beneficiary’s prima facie equitable caveat may be maintained conditionally pending prompt prosecution of their claim.
Land law – Caveats by beneficiaries under the Registration of Titles Act – Reasonableness of lodging a caveat – Prima facie equitable interest – Maintenance of caveat conditioned on prosecuting an ordinary suit – Court’s inherent jurisdiction to protect competing rights.
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17 June 2015 |
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Plaintiff failed to prove marital status or plead material facts; suit dismissed for lacking locus standi and disclosing no cause of action.
Land law – locus standi of spouse – requirement to plead type of marriage and produce proof when challenging dealings in family land; Civil Procedure – dismissal on point of law (Order 6 r.28–30 CPR) where plaint discloses no cause of action; Pleadings – duty to plead material facts and produce documents (Order 6 r.1; Order 7 r.14); Failure to prosecute – proceeding ex parte and sanctions; Costs – allocation where a defendant fails to file defence.
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17 June 2015 |
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A beneficiary may bring proceedings to protect estate property from alleged fraudulent alienation without letters of administration.
* Civil procedure – preliminary objection – locus standi – beneficiary of an estate may sue to protect estate property from waste or alleged fraudulent alienation without holding letters of administration.* Civil procedure – rejection of plaint – O.7 r.11(a) – plaint discloses cause of action where existence of right, violation and defendant’s liability are pleaded.* Distinction between suits for administration of an estate and suits by beneficiaries to preserve estate assets.* Relevant authorities distinguished on their facts.
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16 June 2015 |
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A limitation objection cannot be resolved on pleadings alone where factual dispute exists; the plaint discloses a cause of action.
Land law – Preliminary objections – Limitation – An alleged statute‑barred claim cannot be decided on the face of pleadings where factual dispute exists – Order 7 r.11 – Cause of action – Pleadings must show right, violation and defendant's liability – Improper use of preliminary points deprecated (Mukisa Biscuits; Auto Garage).
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15 June 2015 |
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Appellate court set aside judgment for misapprehension of evidence and ordered retrial due to miscarriage of justice.
* Land law – mortgage agreement and right of redemption; * Evidence – appellate duty to re-evaluate and identify misapprehension of evidence; * Civil procedure – necessity of locus visit where parties describe different parcels; * Miscarriage of justice – failure to properly evaluate evidence and misdirection; * Remedy – judgment set aside and retrial ordered.
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12 June 2015 |
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Applicant failed to prove forgery or fraud; purchaser and mortgagee held bona fide and claim dismissed.
Land registration – Allegation of forgery of transfer – High evidential burden; party tendering disputed document must prove authenticity (handwriting expert).; Purchaser for value – bona fide purchaser/mortgagee without notice – protection where fraud not satisfactorily proved.; Conduct of owner (depositing title with agent, delay, failure to caveat or sue agent) may attract adverse inference regarding consent to transfer.
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8 June 2015 |
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Appeal allowed: trial court improperly relied on unrecorded locus visit and trespass claim failed; costs awarded.
* Land law – sale of inherited land and family graveyard – determination of title when residual graveyard dimensions unclear.
* Evidence – locus in quo visits – necessity of recording proceedings and recalling witnesses; inadmissibility of unrecorded recollections.
* Tort – trespass to land – co-owner cannot sue fellow co-owner in trespass; remedy is recovery/partition.
* Purchaser – bona fide purchaser – purchaser takes no better title than vendor where vendor's title is defective.
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2 June 2015 |
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Appellant failed to prove purchase or Will, lacked due diligence; transaction irregular, respondent not a trespasser and appeal dismissed.
Land law – title disputes over kibanja – failure to tender original sale agreement or Will – proof of Will and probate required – bona fide purchaser doctrine – due diligence and enquiries with Local Council authorities – illegal/voidable transaction will not be enforced.
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2 June 2015 |