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Citation
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Judgment date
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| November 2016 |
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Whether a court may review and amend its judgment to remove a caveat where an apparent error on the face of the record exists.
* Civil procedure – Review of judgment – Section 82 CPA – error apparent on the face of the record allows court to review its decree.
* Civil procedure – Amendment of judgment – Section 99 CPA – court may amend/rectify its decision to effectuate its intention.
* Land law – caveat – removal of caveat and implementation of decree where purchasers found bona fide purchasers for value without notice.
* Functus officio – exception where mistake/error apparent on face of record; pending appeals do not automatically bar review by non-appellant parties.
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30 November 2016 |
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Appeal dismissed: plaintiff proved ownership on balance of probabilities; unexhibited documents lacked evidential weight.
Civil procedure – appeal time and competency – time runs from service of certified record; Evidence – burden on balance of probabilities; Documentary evidence – documents not exhibited and local-language wills without proper translation/translator carry no substantive evidential weight; Credibility – inconsistencies in defendants’ oral testimony undermined their claim to title.
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28 November 2016 |
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No binding lease or fraudulent misrepresentation proved; suit dismissed and defendant refunded deposits, with costs.
* Civil procedure – witness competency – Order 31 r.1 concerns who may be made parties, not witness competence; Evidence Act governs witness competency. * Contract law – formation – essential elements: offer, acceptance and meeting of minds; failure to pay required consideration defeats contract formation. * Misrepresentation – elements require an untrue statement of fact inducing action and resulting loss; mere failed negotiations or absence of formal documents do not amount to fraudulent misrepresentation. * Remedies – refund of deposits and recovery of unproven commercial losses requires clear proof and appropriate cause of action.
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25 November 2016 |
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Court set aside a consent judgment and related contempt orders to allow resolution of competing clan versus personal estate and kibanja versus registered land claims.
* Civil procedure – Consent judgment – Setting aside or review for fraud, collusion, mistake, misrepresentation or lack of consent.
* Civil procedure – Inherent powers – Third party affected by consent judgment may apply to set it aside.
* Contempt – General rule that contemnors barred from relief until contempt purged; exceptions permit hearing in fairness.
* Land law – Dispute over clan/official estate versus deceased’s personal estate; kibanja (customary) versus registered interests require trial determination.
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25 November 2016 |
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Applicant proved one respondent’s post-order construction in contempt; court ordered removal or imprisonment and reserved access orders for the main suit.
Contempt of court – requirements: existence of order, knowledge, breach; interlocutory orders must be obeyed; civil contempt remedies include coercive imprisonment; contempt must be proved against each respondent individually; access/possession remedies deferred to pending main suit.
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25 November 2016 |
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Contempt found for post-order construction by one respondent; ordered removal or imprisonment, other reliefs reserved for main suit.
Land law – interlocutory injunction/interim order – contempt of court – elements: existence of order, notice, breach – civil contempt remedy: coercive detention until compliance – access dispute reserved for main suit.
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25 November 2016 |
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Delict and Tort Law|Evidence Law|Documentary Evidence|Property Law|Land|Land Dispute
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24 November 2016 |
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Criminal law
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22 November 2016 |
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Civil Procedure|Principles|Res Judicata
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21 November 2016 |
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20 November 2016 |
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Evidence Law|Documentary Evidence|Property Law|Land|Land Dispute
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15 November 2016 |
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Civil Procedure|Affidavits|Affidavit
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14 November 2016 |
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Civil Procedure|Appeals and reviews|Judicial Review|Criminal law
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11 November 2016 |
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Appellant’s challenge to credibility failed; respondent proved payments and entitlement to disputed land.
* Evidence – burden of proof in civil cases – balance of probabilities – plaintiff must prove payments and entitlement to land. * Credibility – assessment of oral eyewitness testimony corroborated by documentary exhibits. * Contract/sale of land – receipt of purchase price as element of transfer dispute. * Appeal – first appellate court’s duty to re-evaluate evidence and reach its own conclusion.
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11 November 2016 |
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Appellate court upheld trial finding that purchaser proved payment for land by witnesses and documents; appeal dismissed with costs.
* Land law – sale of land – proof of payment – corroboration by eyewitnesses and written agreements. * Evidence – burden of proof in civil cases – balance of probabilities (Evidence Act ss.101–103). * Appellate review – duty to re-evaluate evidence; failure to elaborate reasons in trial judgment not necessarily fatal if conclusion sustainable on record.
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11 November 2016 |
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Civil Procedure|Property Law|Land
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10 November 2016 |
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Failure to visit locus and ambiguous translated evidence rendered the land award unsafe; retrial ordered with costs each party.
Land law — Appeal — First appellate court’s duty to re-evaluate evidence; Locus visit — necessity in deserving land disputes where boundaries and descriptive evidence require verification; Evidence — ambiguous translation of local-language document ("gardens") cannot be treated as clear acreage; Remedy — retrial ordered where trial findings are unsafe.
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10 November 2016 |
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Applicant failed to prove ownership or that defendants were licensees; trial court’s finding of defendants’ long possession upheld.
* Civil procedure – burden of proof – balance of probabilities – party alleging fact must prove it.
* Evidence – credibility and contradictions – effect of inconsistencies among plaintiff’s witnesses.
* Land law – possession and title – long uninterrupted cultivation and local testimony as evidence of right to possession.
* Appellate review – re‑evaluation of evidence and findings of trial court; deference where conclusions are supported by record.
* Pleadings – inadmissibility or irregularity of evidence on matters not specifically pleaded.
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10 November 2016 |
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Evidence Law|Burden of Proof|Property Law|Land|Mortgage, loans and bonds|Mortgage
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7 November 2016 |
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Strike‑out application dismissed; existence of access road is a factual issue for trial and the High Court has jurisdiction.
Civil procedure – strike‑out (Order 6 r.30 CPR) – demurrer/objection on a point of law – test whether pleadings disclose a reasonable cause of action; Access to Roads Act (Cap.350) – applicability where alleged existing right of access; consolidation of suits – effect on ability to strike out; High Court jurisdiction under Article 139 and Judicature Act to grant remedies; disputed factual issues (existence of right of way) are for trial; Registrar of Titles powers (Section 91 Land Act) noted.
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4 November 2016 |
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Joint survey confirmed trespass; plaintiff awarded declaration, injunction, demolition, general and punitive damages.
* Land law – trespass – encroachment by perimeter wall – use of a jointly-obtained survey report as determinative of factual encroachment.
* Remedies – declaration, permanent injunction, demolition/removal of offending structure, costs.
* Damages – assessment of general damages for loss of use/amenity where direct evidence is limited; award of punitive (exemplary) damages for deterrence.
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4 November 2016 |
Compulsory land acquisition – public use – government compensation obligations – valuation – general damages – interest rate – constitutional compliance – costs award
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4 November 2016 |
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Applicant's attempt to amend defence to add unparticularised counterclaim for expenses and fraud was dismissed with costs.
Land procedure – Amendment of pleadings – Order 6 r19 CPR – Leave to introduce counterclaim – New cause of action and change of subject matter – Special damages require particularisation – Locus and limitation – Mala fides in amendment applications.
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3 November 2016 |
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Appellants failed to prove customary ownership; credibility findings and locus in quo observations upheld, appeal dismissed with costs.
* Land law – Customary tenure – Proof of customary ownership requires evidence of applicable customary rules and acquisition in accordance with them. * Evidence – Judicial notice (Evidence Act s.56(3)) limited to generally known practices; cannot substitute proof of undocumented specific rituals. * Civil appeal – First appeal re-hearing and reassessment of witness credibility; locus in quo observations admissible though should be recorded. * Burden of proof – Claimant must discharge on balance of probabilities; grave contradictions may justify rejection of testimony.
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3 November 2016 |
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Improper locus in quo proceedings admitting unsworn, unrecorded evidence from non-witnesses vitiated the trial and warranted retrial.
* Civil procedure – locus in quo – requirements for inspection: parties and witnesses present, oath, recording, and opportunity to cross-examine.
* Evidence – inadmissibility of unsworn statements and unrecorded observations relied upon in judgment.
* Appeal – first appeal duty to re-hear and re-appraise evidence.
* Retrial – where incurable procedural defects at locus in quo occasion miscarriage of justice, retrial is appropriate.
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3 November 2016 |
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Expired statutory lease and fraud in procurement of title defeat claim for recovery of land; both claims dismissed.
Property law – leasehold expired and reversion vested in District Land Board; Registration of Titles – certificate procured by fraud; Effect of naming deceased as co‑purchaser – incapacity and fraudulent procurement vitiates title; Proof of title as prerequisite to action for recovery of land; Remedies – dismissal where both parties implicated in illegality.
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3 November 2016 |
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Appellate court upheld trial finding of customary ownership and trespass; locus visit and evidence evaluation were proper despite procedural lapses.
* Land law – customary tenure – proof of ownership – evidence of graves, borehole and old homesteads as corroborative factors. * Civil procedure – locus in quo – propriety of inspection in absence of party duly summoned. * Evidence – assessment on balance of probabilities; burden of proof on the asserting party. * Judicial duties – requirement to give specific findings and reasons (Section 136 MCA). * Appeal – appellate re-evaluation of evidence and standard of review.
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1 November 2016 |