Results.
95 judgments found.
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| December 2004 |
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Respondent not liable where applicant voluntarily operated dangerous machinery contrary to warnings and assignment.
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Negligence — duty of care — foreseeability of harm — breach — safety signage and established safe practice — unauthorized deviation from assigned task — claimant's sole/primary fault.
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31 December 2004 |
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A counsel may not swear an affidavit for a party; originating summons requires affidavit by someone with personal knowledge.
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Civil procedure — Originating summons — Affidavits must be sworn by persons with personal knowledge (Order 41 r.5) — Order 113 r.3 permits statements of belief but does not allow counsel or a third party to swear on behalf of a litigant — Originating summons unsuitable where additional claims beyond possession are sought
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31 December 2004 |
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The plaintiff recovered damages after the court found the defendant’s driver negligent for failing to keep a safe distance and lookout.
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Road traffic negligence — cyclist struck while turning — driver’s duty to keep proper lookout and maintain safe following distance; unpleaded allegations not relied on at trial; assessment of general damages and depreciation for damaged property
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30 December 2004 |
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Court dismissed applicant’s review; summary contempt fines may be imposed on evidential proof without extra hearing when liberty is not affected.
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Contempt of court — summary proceedings — sufficiency of evidential proof — imposition of fines absent deprivation of liberty — procedural safeguards where liberty at stake — review versus appeal.
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23 December 2004 |
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Appeal dismissed: Magistrate’s pre‑trial dismissal was interlocutory and ACB lacked capacity due to unconfirmed Director.
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Criminal procedure — appealability — interlocutory dismissal of charge before trial is not a final, appealable judgment under s52A; Capacity/administrative law — Director of Anti‑Corruption Bureau must be confirmed by Public Appointments Committee under s5; unconfirmed appointee cannot validly prosecute or appeal
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16 December 2004 |
| November 2004 |
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Retracted confessions and possession of stolen property supported convictions; appeal against conviction and sentence dismissed.
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Criminal law — Burglary and theft — Possession of stolen property and confessions — Retracted confessions — Application of s176(1) Criminal Procedure and Evidence Code — Appeal against conviction and sentence dismissed.
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22 November 2004 |
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Retracted confessions properly admitted and corroborated; convictions for burglary and theft upheld and appeal dismissed.
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Criminal law — Burglary and theft — Retracted confessions — s.176(1) Criminal Procedure and Evidence Code — admissibility and weight of confessions — corroboration — appeal against conviction.
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22 November 2004 |
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Loss of property during a fight does not, without proof of force or threat, constitute robbery; conviction set aside.
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Criminal law — Robbery — Elements of offence — Taking by means of violence or threat to obtain or retain property — Loss of property during a fight does not necessarily constitute robbery — Conviction unsafe where essential elements not proved
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10 November 2004 |
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Court increases the respondent's burglary sentence from 36 to 84 months due to aggravating conduct and sentencing guidelines.
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Sentencing—Burglary; manifestly inadequate sentence; guideline starting point six years; aggravating factors (threat with knife, assaultive conduct); enhancement on review; concurrent sentences
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10 November 2004 |
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Convictions for housebreaking and theft upheld where accused were found in recent possession of stolen property.
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Criminal law — Housebreaking and theft — Doctrine of recent possession — Possession of stolen property shortly after offence as prima facie evidence of guilt — Appeal dismissed
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10 November 2004 |
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The court confirmed the respondent's rape conviction and upheld a seven-year sentence as not manifestly inadequate.
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Criminal law — Rape — Confirmation of conviction on review — Corroboration of complainant’s evidence — Sentencing — Whether a seven-year sentence is manifestly inadequate
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10 November 2004 |
| October 2004 |
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Appeal against rape conviction dismissed: inconclusive medical report did not negate complainant’s credible testimony and corroborative circumstances.
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Criminal law — Rape — Medical report inconclusive where examination delayed — Absence of laceration does not preclude penetration — Complainant’s credible testimony and circumstantial opportunity/identification can corroborate conviction
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31 October 2004 |
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Plaintiff failed to prove employer negligence and relied on unpleaded allegations; claim dismissed with costs.
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Employer liability — negligence alleged for failure to repair machine, provide safer methods or protective measures; variance between pleadings and evidence; court will not decide on unpleaded issues; causation and operator conduct in machinery accidents.
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22 October 2004 |
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18 October 2004 |
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Court suspended imprisonment and ordered 480 hours community service each, crediting three months already served.
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Sentencing — Suspension of imprisonment — Substitution by community service order — Credit for time served — Specification of placement institutions — Referral to Community Service Officer
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9 October 2004 |
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Criminal refund did not extinguish civil claim; defendant retains defences and statutory protection under s.154(2).
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Customs & Excise Act s.154(2)-(4) — Effect of criminal refund on civil claim — Awards of damages limited by ss.20 & 174 (damage, gross negligence/wilful misconduct) — Passing judicial remarks (vindictiveness) obiter — Constitutional questions require full hearing/three-judge bench — Collection fees governed by legal practitioners' rules
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7 October 2004 |
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A custodial sentence may be reduced on review where defendants pleaded guilty, property was recovered and time served is adequate.
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Criminal law — Theft — Plea of guilt — Sentence review — Mitigation: youth of offenders, recovery of property, time already served — Reduction of custodial sentence on review
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7 October 2004 |
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A properly informed guilty plea admitting the facts sustains an armed robbery conviction; a ten-year sentence was upheld.
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Criminal law — Armed robbery — Plea of guilty — Requirements that ingredients of offence be put to accused — Conviction on plea upheld; sentence within High Court guidelines — Appeal dismissed
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7 October 2004 |
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Court allowed defective affidavit, found no willful default on discovery, and declined to strike out the defence with costs to plaintiff.
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Civil procedure — Specific discovery — Discovery of documents evidencing remittance of funds — Admissibility of defective supporting affidavit (power of attorney not exhibited) — Court’s discretion to admit affidavit — Interlocutory inquiry limited to whether produced documents fall within ordered class — Disputed factual issues to be resolved at trial — No willful default; application to strike out defence dismissed.
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6 October 2004 |
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Application to pay debt by instalments dismissed for inordinate delay; plaintiff may execute judgment and recover costs.
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Debt enforcement — Application to pay admitted debt by instalments — Inordinate delay and failure to prosecute — Counsel’s inability to contact client not an excuse — Dismissal of instalment application — Plaintiff entitled to execute judgment — Costs awarded.
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6 October 2004 |
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Application to pay an admitted debt by instalments granted; monthly K5,000 payments and execution on default permitted.
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Debt repayment by instalments — Courts Act s.11(a)(x) — assessment of defendant’s means — fixing instalment amount — execution on default.
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6 October 2004 |
| September 2004 |
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Bail refused: State’s interest and flight risk outweighed applicant’s medical grounds and constitutional release right.
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Constitutional right to bail — section 42(2)(e) — Bail (Guidelines) Act — burden to justify detention — consideration of health grounds, flight risk and witness intimidation in bail decisions
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2 September 2004 |
| August 2004 |
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31 August 2004 |
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Possession order set aside where a 1974 sale agreement gave the defendant a prima facie defence to plaintiff’s title.
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Land law — setting aside default possession order (Order 113 r.8); effect of historic sale agreement (1974) on title; requirement of conveyance versus agreement; delay excused for poor representation, custody and low literacy
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30 August 2004 |
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Employer failed to prove valid reason and observe natural justice; dismissal declared unfair and K150,000 awarded.
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Employment law — unfair dismissal — constitutional right to fair and safe labour practices; natural justice in disciplinary processes; employer's burden to prove substantial and valid reason; application of ILO Termination of Employment Convention (Article 4) in domestic law
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30 August 2004 |
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Where ownership or boundary disputes exist, summary possession under RSC Order 113 r.1 is inappropriate and a full trial is required.
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Civil procedure — Possession claims under RSC Order 113 r.1; licence from predecessor in title; boundary and ownership disputes; affidavit evidence insufficient to resolve real disputes; referral to full trial under RSC Order 28 r.8
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30 August 2004 |
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The plaintiff is entitled to compound interest at 1% above bank rate on the unpaid judgment balance from February 2004.
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Judgment interest — instalment agreements as waiver of immediate payment — entitlement to compound interest at 1% above bank lending rate (Zgambo v KFCTA) — interest period from default of instalments.
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27 August 2004 |
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Default judgment set aside where defendant’s affidavit and proposed defence showed a prima facie real prospect of success.
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Civil procedure — Default judgment — Order 19 r.9 — Setting aside regularly entered default judgment requires affidavit evidence of a defence on the merits with a real prospect of success; contractual compliance as prima facie defence to wrongful termination; constitutional and ILO challenges reserved for trial.
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27 August 2004 |
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A defendant who satisfies a default judgment cannot later set it aside to avoid sheriff fees.
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Civil procedure — default judgment — attenuated statement of claim — sufficiency of particulars where defendant knows details — Order 6 r 2(1) Rules of Supreme Court; setting aside judgment — effect of satisfaction of judgment; approbation and reprobation; liability for sheriff fees and costs.
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26 August 2004 |
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Action struck out because the plaintiff’s counsel lacked a practising licence; counsel ordered to pay costs.
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Civil procedure — striking out proceedings commenced by an unlicensed legal practitioner — uncontested application — undertaking to discontinue — solicitor to bear costs to be taxed.
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26 August 2004 |
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Dismissal for alleged corruption without disciplinary hearing breached the Employment Act and contractual natural justice; compensation and costs awarded.
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Employment law — unfair dismissal — burden on employer to justify dismissal — natural justice — requirement to issue disciplinary memorandum and afford hearing — procedural bias — compensation as remedy.
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26 August 2004 |
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Employee unfairly dismissed after disputed fraud investigation; employer breached natural justice and must pay damages and costs.
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Employment law — unfair and summary dismissal — principles of natural justice — employer's burden to prove valid reason and act with justice and equity — bias in disciplinary investigations — credibility of witness statements
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25 August 2004 |
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Employees wrongfully dismissed without disciplinary hearing or proof; court awarded compensation and costs, declined interest.
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Employment law — unfair dismissal — employer bears burden to justify dismissal — failure to follow disciplinary procedure and natural justice — suspicion is not proof — remedy by compensation when reinstatement inappropriate
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25 August 2004 |
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Liability acknowledged; damages reduced where plaintiff failed to mitigate and repairer's delay broke causation.
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Tort — Negligence; causation and mitigation of loss; novus actus interveniens where delayed third‑party repairs break causation; proof of special damages and assessment of loss of use/revenue; insurer's pleaded policy limits
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25 August 2004 |
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The respondent was held liable for malicious prosecution, false imprisonment and defamation after discontinuance of unsubstantiated treason charges.
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Malicious prosecution — Elements: prosecution by State, favourable termination (discontinuance), lack of reasonable and probable cause, malice; False imprisonment — breach of constitutional right to liberty; Defamation — reputational damage from criminal charges and publicity; Civil procedure — originating summons treated as writ; Trial in absence of defendant
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25 August 2004 |
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The plaintiff was unfairly dismissed where redundancy was not genuine; awarded unpaid terminal benefits only.
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Employment law — Unfair dismissal — Redundancy must be genuine — Burden on employer to prove reason for dismissal — Remedies: compensation for unpaid terminal benefits — Interest discretionary — Collection charges awarded.
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18 August 2004 |
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Dismissal found unfair; employer failed to prove genuine redundancy and unpaid terminal benefits (K516,730.78) awarded.
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Employment law — Unfair dismissal — Employer bears burden to prove valid reason (s61) — Genuine redundancy — Procedural fairness — Remedies: severance/terminal benefits, discretion on interest — Collection charges as costs
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17 August 2004 |
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Where execution follows an irregular judgment, the applicant who caused execution must pay sheriff fees and expenses.
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Civil procedure — Execution and seizure — Irregular judgment set aside — Sheriff entitled to statutory fees and expenses where seizure made — Liability rests on party who caused execution
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17 August 2004 |
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Exonerated employees are entitled to wages up to dismissal and notice pay, but not interest where evidence undermines total innocence.
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Employment law — effect of acquittal/exoneration — entitlement to wages after exoneration; dismissal not retrospective — wages payable to date of dismissal; discretionary refusal of interest where evidence casts doubt on total innocence; defendant's absence — trial in absence permissible under procedural rules
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17 August 2004 |
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Mandatory minimum custodial sentence applies for corrupt use of official powers; six years imprisonment imposed despite mitigation.
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Corruption — Use of official powers — Mandatory minimum sentence under Section 34 — No retrospective application of amendment — Suspension barred despite first-offender status — Aggravating factors: actual receipt, public officer, significant public funds, harm to public trust and economy
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15 August 2004 |
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Appellate court affirms conviction and two‑year sentence where guilty plea was voluntary and facts supported theft by trick.
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Criminal law — Theft by trick (s.321 Penal Code) — Guilty plea — voluntariness and understanding — appellate review confined to record — sentence not manifestly excessive
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5 August 2004 |
| July 2004 |
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Where a consent order is silent on default, execution is limited to the instalment in default; full-judgment execution is irregular.
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Execution — Seizure — writ of fieri facias — instalment orders — Section 7 Sheriff's Act — irregular execution for whole judgment where only one instalment defaulted — reimbursement of sheriff's fees — costs to defendant.
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29 July 2004 |
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A consent judgment can only be challenged by a fresh action; filing an originating motion within the same cause was improper.
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Civil procedure — Consent judgment finality — Setting aside consent judgment requires a fresh action — Distinction between originating process commencing an action and a motion within an existing cause — Importance of correct party designation and new cause number.
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21 July 2004 |
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Termination held unlawful for failure to disclose reasons; repatriation awarded; rental claim unproven.
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Employment law — unfair dismissal — employer must disclose reasons for termination; fair administrative action and right to be informed; proof required for contractual/benefit claims (rental allowance); repatriation allowance — established practice can create entitlement; set-off of amounts already paid.
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20 July 2004 |
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Interlocutory injunction obtained without originating process and omitted material facts; court ordered the applicant to commence substantive proceedings within 30 days.
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Civil procedure — interlocutory injunction — irregular grant where no originating process filed — alleged suppression of material facts — matrimonial property disputes — requirement to commence substantive proceedings.
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19 July 2004 |
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Decree nisi granted for divorce on cruelty after uncontradicted evidence of assault, including beating while pregnant.
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Family law — Divorce — Cruelty — Bodily injury to spouse (beating while pregnant) — Uncontradicted evidence and medical report sufficient to ground decree nisi — Custody and maintenance reserved for Chambers — Costs awarded to petitioner
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11 July 2004 |
| June 2004 |
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The applicant awarded K100,000 general and K3,800 special damages for injuries from a road traffic collision.
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Personal injury — assessment of damages — general damages for pain and suffering and loss of amenities — special damages for expenses — default judgment/uncontroverted evidence — reliance on comparative authorities
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30 June 2004 |
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Defendants acquitted: prosecution failed to prove corrupt payments, requisite intent, or reliable evidence under the Corrupt Practices Act.
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Corrupt Practices Act — elements of offence; proof of gratification; casual gifts exception; evidentiary sufficiency; corporate criminal liability; reliance on internal documents vs official receipts; acquittal for failure to prove corruption
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30 June 2004 |
| May 2004 |
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Assessment of damages: plaintiff awarded K180,000 for pain and suffering and K65,000 for loss of amenities.
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Assessment of damages — Personal injury — Fracture of right humerus — Default judgment and unchallenged evidence — Quantification of general damages for pain and suffering and loss of amenities — Comparable precedent considered
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31 May 2004 |
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Court awarded K350,000 for pain and suffering and K50,000 for reduced earning capacity after negligent driving.
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Delict/negligence — assessment of damages for pain and suffering, loss of amenities and deformity — award for loss of earning capacity — reliance on comparable local precedents and adjustment for currency depreciation
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31 May 2004 |