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Citation
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Judgment date
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| December 2005 |
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Ex parte leave obtained without disclosing prior deportation is void ab initio; injunction and proceedings were set aside.
Judicial review – ex parte leave – uberrima fides and material non-disclosure; interlocutory injunction – impossibility of performance and American Cyanamid test; deportation and revocation of refugee status – Article 32 (1951 Refugee Convention); locus standi of deported/prohibited immigrants; void ab initio orders
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28 December 2005 |
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No binding contract where purchaser's purchase order constituted counter-offer varying payment and delivery terms; claim dismissed.
Contract formation – offer and acceptance – counter-offer – variation of essential terms (payment and delivery) – objective test – time of the essence – specific performance not available where no binding contract
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13 December 2005 |
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Bailee for reward held liable for loss of vessel where defendant failed to prove absence of negligence; exclusion clause not applicable.
Bailment for reward — duty of care and onus on bailee to prove loss without negligence; exclusion clause must be proved and cannot be extended to separate contract; statutory breaches do not automatically void contracts; jus tertii defence not available to challenge title where bailment established
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5 December 2005 |
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Owner liable only for the current water bill; Water Boards' failure to enforce 30‑day disconnection cannot saddle owners with accumulated arrears.
Waterworks Act — occupier primarily liable for water rates; owner secondarily liable only after occupier default; bye‑laws permitting 30‑day disconnection limit owner's exposure; failure to enforce disconnection is inefficiency
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1 December 2005 |
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Consolidation of related winding-up petitions was appropriate where common issues and unchallenged malice allegations justified a single trial.
Company law – Winding up petitions – Consolidation of petitions – Allegation of malice as defence – Legal remedy vs equitable considerations – Order 4 Rule 9 Rules of the Supreme Court – Companies Act (inability to pay debts)
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1 December 2005 |
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Forfeiture of goods under s159(1) is automatic on conviction; duty paid on forfeited goods must be refunded to avoid double recovery.
Customs & Excise Act s159(1) — automatic forfeiture on conviction; no judicial discretion to release seized goods; s159(2) — duty-payable order applies where goods unrecoverable; prohibition on double recovery of duty
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1 December 2005 |
| November 2005 |
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Court confirms 12-year sentence for armed robbery; reduces weapon possession sentence to 4 years, holding plea discount discretionary.
Criminal law – Sentencing – Armed robbery – seriousness, planning and use of AK47 – mitigation: youth, first offender, guilty plea, medical condition – guilty plea discount discretionary – suspension inappropriate for serious offences – Possession of prohibited weapon – appellate reduction of sentence
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30 November 2005 |
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A consent order has contractual force; the applicant cannot vary it in chambers without vitiating grounds or a fresh action.
Consent order – contractual effect – enforceable as contract – variation only on vitiating grounds (fraud, misrepresentation, duress, mutual mistake, non-disclosure, illegality) – procedural requirement to challenge consent order by fresh action – Section 11(x) requires open court – socio-economic hardship alone insufficient
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21 November 2005 |
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Interim injunction and leave for judicial review vacated: immunity issue is constitutional and DPP, not Attorney General, is the proper respondent.
Constitutional law – Vice‑President criminal immunity – Interpretation of s91(2) – Prosecutorial powers of DPP under s99 – Attorney General not proper party – Appropriateness of judicial review versus criminal plea
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21 November 2005 |
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Court vacated leave and injunction because Attorney General was wrong party and the dispute required constitutional interpretation.
Constitutional law — alleged criminal immunity of the Vice‑President under s91(2); judicial review — appropriateness of remedy; proper party — Attorney General versus Director of Public Prosecutions; alternative remedy — plea of immunity in criminal proceedings
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21 November 2005 |
| October 2005 |
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A predominantly labour dispute should generally be transferred to the Industrial Relations Court after case-by-case assessment.
Jurisdiction — High Court v Industrial Relations Court — transfer of labour disputes; Labour Relations Act s64; case-by-case guidelines for transfer; ancillary non-labour claims do not preclude transfer.
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25 October 2005 |
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Whether Section 25B(3)'s reverse onus breaches the applicants' presumption of innocence and is justifiable under Section 44.
Constitutional law — presumption of innocence — reverse onus in criminal law — right to remain silent — limitation clause (Section 44) — proportionality and evidential/legal burden distinction — corruption offences
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20 October 2005 |
| September 2005 |
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A mortgagee sold charged property after receiver appointment without fresh notice and negligently at an undervalue; plaintiff awarded K1.5m.
Registered Land Act (s68, s71) – appointment of Receiver vs power of sale – requirement for fresh notice after receivership; mortgagee's duty to act in good faith and take reasonable precautions to obtain proper price; negligent sale at undervalue; damages awarded; counterclaim dismissed
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1 September 2005 |
| August 2005 |
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A court may not add a party after default judgment merely to affect execution; a public registration document prima facie establishes ownership.
Civil procedure – joinder of parties after default judgment – Order 15 joinder limited to cases necessary to adjudicate live disputes; Abuse of process in adding party to affect execution
Execution law – levy on goods of judgment debtor; Interpleader – public registration document prima facie establishes ownership; Sheriff to release wrongly seized goods
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24 August 2005 |
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Defendant entitled to recover K8,969,943.40 by set-off for uncaptured payments despite plaintiff proving delivery of goods.
Sale of goods – delivery and payment – disputed invoice and signature authenticity; restitution for money paid under mistake of fact or for failed consideration; set-off against plaintiff's claim; award of costs and refusal of interest
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18 August 2005 |
| July 2005 |
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Failure to file the mandatory interpleader affidavit is fatal; counsel-sworn hearsay affidavits are inadmissible.
Civil procedure – Interpleader (Order 17) – mandatory claimant affidavit within 14 days – admissibility of affidavits (Order 41 r.5) – counsel-sworn hearsay expunged – failure to comply fatal – Sheriff authorized to sell seized goods
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31 July 2005 |
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An eviction judgment obtained without joining a person in actual possession can be set aside to allow them to defend their interest.
Civil procedure – possession of land – non-joinder of person in actual possession – setting aside judgment and eviction obtained without hearing – Order 15 Rule 10 – right to be heard and procedural fairness
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17 July 2005 |
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An appeal does not stay execution and statutory delay for solicitor’s bills does not bar enforcing an order on taxation.
Civil procedure – Garnishee proceedings – Order Nisi – Enforcement of order on taxation – Statutory one‑month delay for solicitor’s bill inapplicable – Appeal does not stay execution (Order 18 r 1(4))
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4 July 2005 |
| June 2005 |
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Bail revocation upheld where inordinate trial delay caused mainly by defence counsel, justifying detention in the interests of justice.
Criminal procedure — Bail revocation — Inordinate delay in trial; accused's counsel conduct and duty to the court; right to trial within reasonable time (s.42(2)(f)(1)); Bail Guidelines Act — interests of justice
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26 June 2005 |
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Prosecution established bribery, misleading of investigators, and corporate liability for payments to public officers to evade tolls.
Corrupt Practices Act – bribery and attempts to bribe public officers – misleading anti-corruption investigators – corporate criminal liability for payments to public officers – statutory effect of acceptance/solicitation without proof of actual forbearance
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15 June 2005 |
| May 2005 |
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Divorce granted where the respondent’s violent temper amounted to cruelty; applicant given custody, respondent visitation.
Matrimonial law – Cruelty as ground for divorce – Standard of proof: balance of probabilities – Jurisdiction and non‑collusion – Custody and visitation orders
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31 May 2005 |
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Buyer entitled to refund of deposit with agreed 50% interest for seller’s prolonged non-delivery of contracted PABX.
Sale of goods – sale by description and implied conditions; non-delivery and remedies – refund for total failure of consideration; frustration – defence rejected where supplier’s conduct shows procurement and promises; interest on deposit at agreed contractual rate; nominal damages where consequential loss not proved.
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30 May 2005 |
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Plaintiff failed to prove title to disputed land; trespass claim dismissed and injunction dissolved.
Land dispute — proof of title — identification of locus in quo — admissibility and value of Lands Department witness evidence — failure to establish trespass — costs and dissolution of injunction
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26 May 2005 |
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Conversion to writ disallowed where fraud was alleged from the outset; application dismissed for inordinate delay and non‑prosecution.
Civil procedure – Originating summons v writ – Order 28 r 8 RSC – Conversion to writ only where fraud arises during proceedings; fraud pleaded at outset precludes conversion – Delay and failure to prosecute – dismissal and costs.
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18 May 2005 |
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Court rejects securing child maintenance by speculative business interest and increases monthly maintenance to MK 75,000.
Matrimonial law — variation of child maintenance — proposed security by transfer of business interest — insufficient evidence of ownership or income — best interests of the child under Constitution and CRC — maintenance orders are variable
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15 May 2005 |
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Time was not of the essence; respondent’s resale breached the sale contract — applicant entitled to refund with interest.
Contract for sale of land – equitable interest of purchaser – vendor as trustee – time not of the essence unless expressly agreed – wrongful resale to third party – repudiatory breach – refund of purchase monies with interest – set-off unavailable where debts accrue in different transactions or against different legal persons
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12 May 2005 |
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Mandatory injunction refused where alleged dishonesty raised factual issues requiring trial and sponsorship withdrawal was permissible.
Injunctions — mandatory injunctions are exceptional and require an unusually strong case; factual disputes (e.g., alleged dishonesty) cannot be decided on affidavit and require trial; withdrawal of sponsorship does not necessarily terminate a student’s place at an institution
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10 May 2005 |
| April 2005 |
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The applicant's unequal-pay and withheld-certificate claims were dismissed; respondent must assist in obtaining a replacement certificate.
Employment law — equal remuneration for work of equal value — burden on employer to justify pay differences; employee redeployment/trainee status; loss of qualification certificate — duty to mitigate; appropriate relief when original certificate lost — assistance to obtain replacement; costs discretion in employment disputes
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30 April 2005 |
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Buyer’s claim for non-delivery fails where contract was conditional on USG availability and non-delivery was excused by force majeure.
Contract law – conditional sale agreement – delivery contingent on third party (US Government) availability – force majeure and frustration invoked by administrative/market interference – unsuccessful variation/negotiation does not constitute binding rescission.
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26 April 2005 |
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Long delay and lack of sufficient cause barred defendant’s request; default judgment and damages reinstated.
Civil procedure — Default judgment and assessment of damages — Setting aside or varying orders — Order 24 r 17 ‘sufficient cause’ — Consent order for directions — Delay and lack of diligence — Loss of records by fire and file reconstruction not automatically sufficient cause.
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19 April 2005 |
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Plaintiff awarded 15% collection costs where sworn affidavit showed part payment occurred after service and claim was duly pleaded.
Civil procedure — debt recovery — entitlement to collection costs under Legal Practitioners (Scale and Minimum Charges) Rules — affidavit evidence on date of part payment preferred to unsworn oral submissions — pleading of collection costs.
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12 April 2005 |
| March 2005 |
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Plaintiff proved defendant-driver's negligence; collision on plaintiff's lane not conclusive, damages and costs awarded.
Road traffic accident — Negligence — Collision on wrong side of road not conclusive — Burden on driver who departs from ordinary rule to justify departure — Credibility assessment of eyewitness testimony — Damages for repairs and hire costs
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31 March 2005 |
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Commissioner's compensation determinations must be enforced under the Workers' Compensation Act, not sued in the High Court.
Workers' Compensation Act – enforcement of Commissioner's determinations – determinations enforceable as Chief Resident Magistrate orders – forum and procedure for enforcement and appeals; Section 63 – separate remedy for negligence (damages) distinct from enforcement of Commissioner's award
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31 March 2005 |
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Driver negligent approaching busy market; deceased not contributorily negligent; K99,000 awarded for loss of dependency.
Road traffic – negligence – duty to approach market area at a speed permitting stopping; Credibility of eyewitness evidence; Contributory negligence – pedestrian standing on verge; Damages – loss of dependency, multiplicand/multiplier where income unproved; Late accident report and absence of criminal charge in civil assessment
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15 March 2005 |
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Claimant failed to prove ownership of a seized vehicle; court upheld registrar's dismissal on credibility grounds.
Interpleader — ownership of seized goods — burden of proof; credibility of documentary evidence; delay in transferring title undermining ownership claim; appellate review of registrar's credibility findings
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12 March 2005 |
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Court upheld interlocutory mandatory and prohibitive injunctions protecting former president’s security rights pending judicial review.
Administrative law – Interlocutory mandatory and prohibitive injunctions – legitimate expectation to be consulted on security personnel – police deployment: operational discretion versus statutory duty – judicial review – proper respondent (Inspector General of Police)
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3 March 2005 |
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Summary judgment refused where triable issues exist on whether defendant was legally liable as agent despite disclosed principals.
Civil procedure — Summary judgment (Order 14) — Leave to defend where real or substantial question to be tried — Agency — whether defendant was agent at law or only commercial agent — effect of disclosed principal — prior course of dealing and implied liability.
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1 March 2005 |
| February 2005 |
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Court dismisses claim that plaintiff was misappointed as clerk not controller for lack of proof and wrong procedure.
Employment law — procedural form of commencement (Originating Summons vs writ) — offer and acceptance — burden of proof for advertised post and misrepresentation — duress — probationary dismissal
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24 February 2005 |
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Decree nisi granted where spouse's violent conduct, willful neglect and secret administration of traditional medicine constituted legal cruelty.
Matrimonial law – divorce for cruelty – traditional medicine administered without consent as cruelty – willful neglect to care as cruelty – no condonation or collusion; custody and property issues deferred to chambers
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21 February 2005 |
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A taxation review must be conducted by the taxing officer; the applicant failed to comply with Order 62 procedural requirements.
Civil procedure – taxation of costs – Order 62 RSC (rules 33 and 34) – review of taxing officer’s decision – jurisdiction to review – procedural requirement to file and serve written objections.
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17 February 2005 |
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The respondent held liable for assault and battery by its employee; damages to be assessed by the Registrar.
Tort — Assault and battery by security guard — Credibility findings — Employer liability for agent’s wrongful act — Assessment of damages — Evidentiary weight of visitor register and witness consistency.
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16 February 2005 |