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Citation
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Judgment date
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| December 2003 |
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Applicant awarded market-rental damages and assessment costs for respondent's wrongful occupation based on unchallenged valuation evidence.
Property law – Wrongful possession – Measure of damages: market rental value; assessment based on unchallenged professional valuation; award of K509,000 and costs of assessment.
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31 December 2003 |
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Letters admitting rent arrears and failure to seek a stay for arbitration led to judgment on admissions and summary judgment for the plaintiff.
Lease – rent and service-charge arrears – admission by correspondence – Order 27 r.3 (judgment on admissions) – arbitration clause – stay under Arbitration Act – failure to apply for stay – Order 14 r.1 (summary judgment) – costs.
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31 December 2003 |
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Summary judgment granted where plaintiff proved debt and defendant failed to file particulars or show a bona fide defence.
Civil procedure – Summary judgment under Order 14 – Plaintiff’s documentary proof of debt – Defendant’s failure to file defence or affidavits with particulars – No bona fide defence – Judgment with costs.
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31 December 2003 |
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Whether service at a spouse's workplace renders a default judgment irregular and if a meritorious defence warrants setting it aside.
Civil procedure — setting aside default judgment — Order 13 r 9 — service by post/last known address — service at spouse’s workplace — regularity of judgment — meritorious defence — right to trial.
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31 December 2003 |
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Assessment of general damages for assault and battery based on uncontested evidence and medical report.
Tort — Assault and battery — Assessment of general damages — Pain and suffering, loss of amenities, injury to feelings — Weight of medical report versus continued employment and outpatient treatment.
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31 December 2003 |
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Where the respondent negligently damages the applicant's vehicle, the applicant is entitled to loss-of-use damages based on reasonable hire costs.
Tort — Negligence — Motor vehicle collision — Liability for loss of use — Measure of damages for loss of use assessed by reasonable hire cost per day.
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31 December 2003 |
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Applicant awarded K457,000 for repair and loss-of-use after vehicle damaged by police officers; hire costs upheld.
Assessment of damages — Vehicle damaged by state police — Repair costs and loss-of-use hire costs — Acceptance of undisputed evidence — Award of damages and costs.
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31 December 2003 |
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Default judgment set aside for irregular service; defendant's meritorious defence found; plaintiff to pay sheriff fees.
Civil procedure – setting aside default judgment – service of process – personal service required under Order 65 r2 – third‑party acknowledgement and agency – meritorious defence – sheriff fees (s.44(3) Sheriff Act).
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31 December 2003 |
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Summary judgment refused where genuine disputes existed over amount recovered and entitlement to statutory 15% collection fees.
Civil procedure – Summary judgment (Order 14) – Requirement of no bona fide defence; Solicitors’ collection fees – statutory 15% under Scales and Minimum Charges (Table 6); entitlement and timing of recovery; necessity of evidence on amount collected and plaintiff’s role; litigant in person claims and bill of costs.
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31 December 2003 |
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A respondent's general denial cannot resist summary judgment absent a shown bona fide defence to a conversion and delivery-up claim.
Civil procedure – Summary judgment (Order 14) – General traverse insufficient – Defendant must show cause by affidavit to raise bona fide defence – Conversion/delivery up of vehicle – Change of registration as evidential admission.
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31 December 2003 |
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Summary possession under Order 113 inappropriate where ownership and bona fide purchaser issues require plenary proceedings.
Property law – recovery of possession – Order 113 RSC – wrongful occupation vs purchaser with defective title – bona fide purchaser – summary proceedings inappropriate where title disputed – proceed by writ – service of process.
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31 December 2003 |
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Damages for conversion and loss of use awarded to the applicant after respondent's agents seized her household goods; costs to applicant.
Property law – Conversion and trespass to goods – Appropriate remedy where goods not returned – Measure of damages for conversion (market value at time of wrong v. value at assessment) – Damages for loss of use of domestic household items – Costs.
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31 December 2003 |
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Summary judgment granted where defendant’s uncorroborated assertion of cheque payment failed to disclose a bona fide defence.
Civil procedure – Summary judgment (Order 14) – Defendant must show bona fide defence supported by credible evidence – Mere assertion of cheque payment insufficient – Production of bank statements or equivalent may be required – Non-attendance undermines defence.
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31 December 2003 |
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Summary judgment application undermined by material discrepancies between affidavit figures and particulars of claim, failing to prove the debt clearly.
Civil procedure — Summary judgment (Order 14) — Plaintiff must prove debt clearly in affidavit — Inconsistencies between affidavit and pleadings — Omission of payments and unexplained numerical discrepancies defeat summary relief.
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31 December 2003 |
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Court continued attachment order where plaintiff sold preserved vehicle in bad faith and ordered consolidation and costs to defendants.
Attachment/preservation orders – ex parte orders and abuse of process – sale of preserved property – bad faith conduct – consolidation of related proceedings – costs awarded.
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30 December 2003 |
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Whether a party may withdraw from a fixed-term employment agreement before commencement where the other party’s conduct amounts to anticipatory breach.
Contract law – fixed-term employment agreement – pre-commencement withdrawal – anticipatory breach/repudiatory conduct – objective test – remedies; insufficient evidence for counterclaim.
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30 December 2003 |
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Where an injunction already exists, the applicant cannot obtain a second identical injunction; committal is the proper remedy.
Injunctions – ex parte injunctions – consent orders – estoppel – multiplicity of injunctions – remedy for breach of injunction is committal proceedings rather than duplicate injunctions.
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28 December 2003 |
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An ex parte injunction enforcing a claimed right of way was retained pending trial because no material suppression was shown.
Civil procedure — interlocutory/ex parte injunction — application to dissolve injunction — suppression of material facts — easement/right of way — prima facie entitlement to easement enforceable by interlocutory relief — factual issues reserved for trial.
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28 December 2003 |
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Fine alone inadequate for wildlife trafficking; imprisonment imposed despite statutory ambiguity and first-offender status.
Wildlife law – National Parks and Wildlife Act s.110 – ambiguity in prescribed fine; penal statutes strictly construed; sentencing – first offenders (s.340 Criminal Procedure) – fine versus imprisonment; seriousness and public interest in wildlife trafficking; aggravating conduct (resistance, syndicate activity).
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28 December 2003 |
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Interlocutory injunction granted where triable issues and potential loss of goodwill made damages an inadequate remedy.
Contract law – distributorship termination – requirement of written notice and opportunity to be heard – adequacy of damages – interlocutory injunction to preserve goodwill and status quo pending trial.
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23 December 2003 |
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Repatriation should be to place of recruitment or nearer home; bank-rate interest and collection-charge orders were unlawful and set aside.
Employment law – repatriation on termination – fair labour practices under constitutional provision – balance of employer and employee interests; Industrial Relations Court jurisdiction – limits on awarding equitable remedies; Award of interest – necessity to plead basis and rate; Legal collection charges – payable by collecting party under Legal Practitioners (Scale and Minimum Charges) (Amendment) Rules 2002; Costs.
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21 December 2003 |
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The court held that government funds are immune from garnishee execution; judgments against the State require appropriation/constitutional procedure.
Public law — Immunity from execution — Garnishee proceedings (Orders 45–52) inapplicable to Government — Order 77 r.15 part of domestic practice — section 8 Civil Procedure Act does not authorize common-law execution against State — Constitutional requirement to charge and appropriate Consolidated Fund for judgments.
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15 December 2003 |
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Creditor may apply under s.337(1) within existing proceedings; veil lifted for director's scheme to defraud.
Companies Act s.337(1) – lifting corporate veil – application may be made within existing proceedings – no separate originating process required – procedural irregularities curable – intention to defraud shown where director/shareholder sold security offered for company overdraft – failure to file opposing affidavit treated as admission.
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11 December 2003 |
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An Assembly may lawfully levy municipal rates during dissolution; equitable ownership and possession render the defendant liable for rates.
Local government law – Power to levy and collect municipal rates during dissolution of assemblies; Rating law – "Owner" for valuation and rating includes equitable owners and those entitled to dispose of an interest; Pleading requirements – specific pleading required for claim for interest; Legal practitioner collection costs – applicable amendment determined by date proceedings commenced.
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11 December 2003 |
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No immediate appeal to the Supreme Court lies from a High Court's interlocutory finding that a defendant has a case to answer.
Appeal — interlocutory order — finding of 'case to answer' — final judgment requirement under s.11(1) Supreme Court Act — DPP appeals distinguished — timing of appeal (raise after final judgment).
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9 December 2003 |
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High Court may hear "no case" submissions; prosecution evidence here required defendants to enter defence on corrupt-practices charges.
Criminal procedure Submission of no case to answer; High Court jurisdiction to entertain such submissions; application of Galbraith test. Corrupt Practices Act s24(2) elements: corruptly give/promise/offer gratification as inducement. Evidence sufficiency, credibility, and effect of inconsistencies or delay. Amendment of charge under s254(2).
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7 December 2003 |
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A receiver appointed to protect an estate is liable for loss from failure to safeguard assets; Section 27 immunity does not cover omissions.
Wills & Inheritance Act – Receiver's duties to take possession and protect estate pending grant – Section 27 immunity not applicable to failure to act; summary judgment under Order 14 appropriate where no bona fide triable defence.
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7 December 2003 |
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The applicant successfully set aside a default judgment entered against the wrong party without proper service.
Civil procedure — Default judgment — Irregular judgment where originating process not served on correct legal entity — Misnomer versus amendment — Ex debito justicie relief — Insufficiency of poorly labelled exhibits to prove prior payments.
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4 December 2003 |
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Application for bail denied: serious charges, prior flight and confession create absconding risk despite medical complaints and prosecutorial delay.
Bail pending trial – Capital offences (murder) – Exceptional/special circumstances required – Balancing right to liberty against interests of justice – Pre-trial delay and medical illness – Flight risk and confession – Registrar ordered to set down trial.
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3 December 2003 |
| November 2003 |
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Court awarded aggravated damages, travel expenses and costs for front-page libel aggravated by imputations of criminality and no apology.
Defamation – libel – assessment of damages – aggravated damages for imputations of criminality – absence of apology or retraction – default judgment and assessment in defendant’s absence – comparative awards and currency depreciation.
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30 November 2003 |
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Court awards gratuity, pension, nine years' salary arrears and leave grant for wrongful premature retirement.
Labour law – wrongful premature retirement – assessment of damages – entitlement to gratuity, pension, salary arrears and leave grant – assessment on unchallenged evidence – reliance on MSCA precedent (Chawani v Attorney General).
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30 November 2003 |
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Court may revive an action after non-compliance with an unless order where extraneous circumstances justify extension of time.
Civil procedure – 'unless' order – power to revive/delayed compliance – court may extend time to bring action back to life where extraneous circumstances exist – stringent terms and costs may be imposed.
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30 November 2003 |
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Ex parte injunction and leave for review discharged: ACB lacks capacity to be sued; non-disclosure and wrong party sued.
:[
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28 November 2003 |
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Unpleaded trial evidence of a stationary vehicle cannot be used to establish contributory negligence; defendant held vicariously liable.
Negligence – duty of care – breach causing personal injury; Contributory negligence – requirement that facts supporting the defence be pleaded; Pleadings – admissibility of evidence first raised at trial; Vicarious liability – employer liable for servant's negligence; Remittal for assessment of damages.
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21 November 2003 |
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A dismissal under contract can be constitutionally unfair if the employer fails to give reasons and an adequate opportunity to answer allegations.
Constitutional law – right to fair labour practices (s31) – natural justice in employment – duty to give reasons and opportunity to answer for misconduct; International law – ILO Termination of Employment Convention binding domestically (pre‑1994 ratification); Remedies – s46 remedies including compensation and reinstatement; Pre‑Employment Act protection for procedural fairness in dismissals.
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20 November 2003 |
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Pre-Employment Act dismissal can violate the constitutional right to fair labour practice, warranting discretionary compensatory awards rather than common-law damages.
Constitutional right to fair labour practice (s31) – unfair dismissal before Employment Act – compensation as primary remedy – heads of compensation: immediate wages, manner of dismissal, future loss, loss of severance/benefits – political discrimination as unfair labour practice.
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20 November 2003 |
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Termination under contract can be unfair if employer fails to provide investigatory procedure and procedural fairness.
Employment law – wrongful/unfair dismissal – contractual termination vs procedural fairness – natural justice applies where termination is for conduct – Constitution s.31 fair labour practice – Employment Act s.57 – Termination of Employment Convention – damages awarded: one month’s salary per year of service.
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20 November 2003 |
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Whether the applicant’s transfer was a secondment retaining employment for redundancy-pay calculation, including Kenyan salary.
Employment law – transfer/secondment within corporate group – whether transfer terminated original contract – redundancy pay calculation – inclusion of foreign salary and allowances – enforceability of agreed redundancy arrangements – effect of "full and final" receipt signed under pressure.
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20 November 2003 |
| October 2003 |
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A defendant may set aside a default injunction judgment by showing a meritorious defence and that the plaintiff lacks clean hands.
Civil procedure – setting aside default judgment (Order 19 r 9) – defendant must show bona fide defence on the merits (Farden v Richter) – equitable relief and clean hands doctrine – dispensing with service of defence – costs where judgment regularly entered.
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31 October 2003 |
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Confession held admissible; false accounting on delivery note not forgery; theft proven in part, defendant released immediately.
Criminal law – admissibility of confession – voluntariness and unrepresented accused; Forgery – definition and limits; False accounting versus forgery; Theft by servant – requirement to prove quantum of property stolen for conviction and sentencing.
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29 October 2003 |
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Interlocutory injunction refused where damages are adequate and plaintiff cannot show ability to meet undertaking as to damages.
Interlocutory injunction — adequacy of damages — American Cyanamid principles — undertaking as to damages — agency and alleged fraud reserved for trial.
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29 October 2003 |
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A summary judgment applicant cannot routinely cross‑examine a company officer on an adopted affidavit; leave is exceptional.
Civil procedure — Summary judgment (Order 14/Part 24 CPR) — Cross‑examination of affidavit deponents — Company officer adopting another affidavit — Leave to cross‑examine exceptional — Fraud allegations more appropriately resolved at trial.
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28 October 2003 |
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Application to dissolve ex parte interlocutory injunction dismissed; injunction maintained pending administration and distribution of the estate.
Civil procedure – interlocutory (ex parte) injunction – dissolution application – material non‑disclosure – adequacy of damages – balance of convenience/status quo pending appointment of administrator.
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28 October 2003 |
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Whether the applicant solicitors may compel the defendants to pay solicitor‑client collection fees directly under amended scale rules.
Solicitor's lien; direct payment to solicitor; taxation of costs; Legal Practitioners (Scale and Minimum Charges) (Amendment) Rules 1999; statutory notice under Civil Procedure (Suits by and Against Government) Act; stay for arbitration; indemnity principle.
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22 October 2003 |
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Plaintiff had standing; amendment invalid insofar as it extended floor‑crossing to parties/associations outside Parliament.
Constitutional law — locus standi under sections 15(2) and 46(2) — judicial review of constitutional amendments — crossing the floor — limits on freedom of association and political rights — severance of unconstitutional portions of an amendment.
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5 October 2003 |
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Appellate court increased burglary sentences by two years each due to multiple offenders, absence of guilty pleas, and prior convictions.
Criminal law — Sentencing — Burglary — Starting point six years' imprisonment — Appellate enhancement for aggravating factors (multiple offenders, no guilty plea, prior convictions) — Review of sentence disparity.
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2 October 2003 |
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Court reduced a manifestly excessive six-year burglary sentence to four years after balancing aggravating factors and mitigation.
Criminal law – Sentencing – Burglary/housebreaking – Aggravating factors (violence, damage, multiple offenders, vulnerable victims) – Mitigating factors (youth, first offender, guilty plea, cooperation) – Chizumila six-year threshold – Simple burglary minimum three years.
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2 October 2003 |
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Conviction upheld despite defective particulars where no prejudice; burglary sentence deemed manifestly inadequate but not increased as already served.
Criminal procedure – Duplicity in charge – section 128 requirements – particulars of offence; Plea of guilty – prejudice test for defective charge; Sentencing – burglary/housebreaking – Chizumila six-year threshold; Simple burglary minimum three years; Review of sentence after sentence served.
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2 October 2003 |
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Court reduces an excessive burglary sentence to three years, applying factors like youth, guilty plea and victim vulnerability.
Criminal law – Sentencing – Burglary/housebreaking – sentencing factors (actus reus and mens rea, offender's age, first offender, guilty plea, victim vulnerability) – Chizumila starting point and threshold burglary – simple burglary minimum custodial sentence three years.
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2 October 2003 |
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Whether duplicative particulars vitiate conviction and whether a twelve‑month burglary sentence was manifestly inadequate.
Criminal law – Charge drafting – duplicity in particulars – s.128 Criminal Procedure and Evidence Code – guilty plea – conviction confirmed where defect caused no prejudice; Sentencing – burglary/housebreaking – Chizumila starting point (six years) and minimum three years for simple burglary; factors: victim vulnerability, multiple offenders, plea and antecedents; late review after sentence served.
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2 October 2003 |