Results.
133 judgments found.
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| August 2007 |
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An inter‑partes injunction to restrain sale of mortgaged property dismissed as technically incompetent absent substantive action by the applicant.
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Injunctions — inter‑partes application — interim relief to restrain sale of mortgaged property — technical incompetence where applicant fails to take substantive steps to pursue alleged repayment arrangements — enforcement of security — costs and legal aid.
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30 August 2007 |
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Appeal allowed: conviction quashed because identification was unsafe and uncorroborated.
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Criminal law — Robbery — Identification evidence — Single identification amid confusion — Need for corroboration where risk of mistaken identity — Unsafe conviction — Medical report excluded.
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22 August 2007 |
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Unexplained delay and complainant's relative's conduct undermined prosecution, leading to quashing of sexual‑offence convictions.
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Criminal law — Sexual offences (incest and rape) — Delay in reporting — Complainant credibility — Alleged improper motive of complainant's relative — Unsafe conviction resulting in quash of convictions.
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22 August 2007 |
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Mandatory minimum sentence applies for theft over K80,000 without restitution; remand credited; appeal dismissed.
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Criminal law — Theft by public servant — Section 283(4) Penal Code — Mandatory minimum sentences for theft above statutory thresholds; restitution removes minimum; credit for remand custody; section 283(6) seizure/sale where restitution not made.
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22 August 2007 |
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Plaintiff awarded damages where insurer’s certificate and police report established insured vehicle and driver’s reckless driving caused death.
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Road traffic accident — Insurer liability — Certificate of insurance covering accident period — Police finding of reckless driving — Defence regarded as sham — Broker as agent — Damages for death of passenger in course of employment.
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20 August 2007 |
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Leave for judicial review refused due to lack of arguable procedural unfairness and inordinate, unexplained delay.
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'Judicial review' — leave requirement; focus on decision-making process not merits; 'Promptness' — three-month rule under Order 53; 'Extension of time' — discretion and good reason required; 'Official minutes' — finality of record; 'Ignorance of law' not an excuse for delay.
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9 August 2007 |
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Court upheld District Commissioners' intestate allocation, awarded house to defendants and costs against the plaintiff.
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Intestate succession — administrative allocation by District Commissioners — judicial review of district determinations — allocation of immovable property — procedural default and costs.
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9 August 2007 |
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Court upheld theft convictions for two appellants, set aside conspiracy count, and quashed convictions against third due to sole reliance on co-accused testimony.
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Criminal law — Theft of public property — Substantive conviction obviates need for conspiracy count — Accomplice evidence requires caution; benefit of doubt where uncorroborated — Appeals against sentence dismissed.
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8 August 2007 |
| July 2007 |
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An organiser cannot oust court review by rule; summary disposal refused due to a disputed issue of the plaintiff's age.
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31 July 2007 |
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Fraudulent collection and sale by family members did not defeat the plaintiff's title; purchaser lacked protection and possession was restored.
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Land law — Order 113 converted to writ where serious dispute arises — Title and lease fraudulently obtained by family member — Sale to third party not protected if purchaser had notice or was negligent — Fixtures and improvements form part of land — Possession and costs awarded to plaintiff.
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31 July 2007 |
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Whether a co‑accused can be convicted absent common intention and whether a young first offender’s sentence should be mitigated.
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Criminal law — Assault and bodily injury — Common intention — Liability of co‑accused — Circumstantial and direct evidence; Sentencing — mitigation for youth and first offender; Quashing convictions where no joint criminal enterprise established.
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31 July 2007 |
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Leave granted for judicial review of the Speaker's indefinite budget adjournment; ex parte mandatory reliefs and appropriation orders refused.
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Judicial review — Standing of applicant (student union president) — Wednesbury unreasonableness — Public/constitutional law — Leave to apply for judicial review granted — Ex parte mandatory and prohibitory interlocutory injunctions refused — Separation of powers: Parliament's exclusive appropriation authority — Directions for expedited inter-partes hearing.
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30 July 2007 |
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Bail granted subject to bonds, sureties, monthly police reporting, travel restrictions, and forfeiture on breach.
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Bail application — grant of bail — conditions of bail — bail bonds and sureties — reporting requirement — travel restriction — forfeiture and cancellation on breach.
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24 July 2007 |
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The court granted bail to the applicant subject to monetary bonds, sureties, monthly police reporting and travel restrictions.
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Bail — Grant of bail — Conditions imposed including monetary bail bond and sureties — Reporting to police — Travel permission required — Forfeiture on breach
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24 July 2007 |
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Court granted bail with specified non-cash bonds, surety requirements, reporting and travel conditions, and forfeiture on breach.
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Bail — Granting of bail pending trial — Conditions of bail including bail bonds and sureties — Reporting requirements — Travel restrictions — Consequences of breach (cancellation and forfeiture).
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24 July 2007 |
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Conviction quashed where employee-driver was not vehicle owner and employer remedied the defective tyres.
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Traffic offence — driving with worn tyres — liability of driver versus employer/owner — appropriateness of prosecuting employee where employer remedied defect.
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16 July 2007 |
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An equivocal guilty plea must be treated as not guilty; conviction quashed rather than ordering retrial to avoid further injustice.
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Criminal procedure — Plea of guilty — Equivocal plea requiring recording of not guilty and full hearing — Section 251 proviso — Remedy of quashing conviction where retrial would cause injustice due to detention period.
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16 July 2007 |
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A political party cannot be joined in judicial review against a public officer; Order 53 r.9(1) governs joinder requests.
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Administrative law — Judicial review — Procedure for persons desiring to be heard or joined — Order 53 r.9(1) governs; Joinder — Political party not a proper party in judicial review against a public officer; Speculative electoral interest insufficient for joinder.
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15 July 2007 |
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An applicant may enforce a hire contract and recover replacement value despite the respondent’s lack of vehicle hire permit.
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Contract Law — Vehicle Hire — Enforceability of hire contract where only the operator intended to contravene permit requirements — Road Traffic (Operator and Road Service Permit) Regulations secs 6 & 7
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Road Traffic — Operator Permit — Requirement of Class A permit and red numbers for public hire vehicles — Operator’s responsibility to ensure compliance
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14 July 2007 |
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Accusations of witchcraft are not actionable per se absent imputation of crime or proof of special damage.
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Defamation — Slander — actionable per se — imputation of criminal offence under Witchcraft Act s.4 and s.6 — proof of special damage — assessment of damages.
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13 July 2007 |
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Bail is constitutional but not absolute; court refused bail where the state’s no-objection was uninformed and counsel were unprepared.
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Criminal procedure — Bail — Bail is a constitutional right but not absolute — Court’s duty to scrutinize bail applications — State’s lack of informed objection and unprepared counsel undermining merit of no-objection stance.
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12 July 2007 |
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Bail denied where the applicants sought bail while the prosecution and counsel were unprepared; bail is not absolute.
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Criminal procedure — Bail — Constitutional right under section 42 — Not absolute; judicial discretion required — Court must satisfy itself that bail is merited — Prosecution preparedness and counsel presence material to bail assessment.
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12 July 2007 |
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Court reintroduced a limited bail reporting requirement to enable policing and protect the accused, despite previous removal.
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Criminal procedure — Bail — Variation of bail conditions — Reporting requirement for movements within Malawi — Protection of accused and policing considerations — Functus officio.
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12 July 2007 |
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Bail refused for robbery suspect due to seriousness and risk of interfering with an absconded witness.
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Criminal procedure — Bail — Robbery charge — Seriousness of offence — Risk of interfering with witnesses (absconded witness) — Speedy investigation and prosecution.
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10 July 2007 |
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Bail refused for applicant charged with robbery due to risk of interfering with witnesses despite completed investigation.
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Criminal law — Bail application — Robbery — Seriousness of offence — Risk of interfering with witnesses — Completion of investigation not determinative — Need for speedy prosecution.
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10 July 2007 |
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Plaintiff awarded K250,000 for malicious prosecution and false imprisonment; defamation and unpleaded special damages dismissed.
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Tort — False imprisonment and malicious prosecution — assessment of damages; constitutional 48‑hour limit for detention; failure to plead special damages; late adjournment refused.
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9 July 2007 |
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Court ordered an inter partes, expedited hearing on a joinder application in judicial review of the Speaker's actions.
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Constitutional/Parliamentary procedure — petitions under section 65 for 'crossing the floor' — judicial review and ex-parte interlocutory injunction — civil procedure: intervention/joinder under Order 15 r.6(2)(b) and r.3 — discretion to join parties — expedited inter partes hearing.
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3 July 2007 |
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Employer’s requirement to stay and reconcile cash was not false imprisonment; police detention, if unlawful, is attributable to the State.
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Tort — False Imprisonment — Employer’s retention of employee to account for missing funds — Distinction between giving information to police and instigating arrest — Criminal Procedure provision on presentation within 48 hours
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3 July 2007 |
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Whether ministerial regulations closing independent forex bureaux were validly made and whether ex‑parte judicial‑review leave was properly granted.
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Constitutional law
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Subsidiary legislation — Laying before Parliament and validity of Exchange Control (Foreign Exchange Bureaux) Regulations 2007 under s58(1) of the Constitution
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Delegation of legislative power — Prohibition where fundamental rights substantially affected — s58(2) of the Constitution
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Administrative law — Judicial review — Ex‑parte leave — Duty of full and frank disclosure and setting aside leave
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1 July 2007 |
| June 2007 |
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Carrier and depot held liable as bailees for lost goods; plaintiff partly contributorily negligent and damages apportioned 70/20/10.
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Bailment and sub-bailment — carrier liability for servants' dishonesty — duty of reasonable care — onus on bailee to prove absence of negligence — exclusion clause requires prior notice — contributory negligence in contractual bailment — apportionment of damages and costs.
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27 June 2007 |
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Carrier and depot found liable as bailees for lost goods; exclusion notice not effective; plaintiff partly contributorily negligent.
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Bailment and sub‑bailment — carrier and depot operator liability for loss or theft — incorporation of exclusion clause; contributory negligence; assessment and apportionment of damages.
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27 June 2007 |
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Court reduced a manifestly excessive five‑year sentence for grievous harm to 18 months, finding the facts warranted a lesser offence.
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Criminal law — Sentence — Manifestly excessive sentence reduced on appeal — Wrongful charging: causing grievous harm (s238) where facts merited assault occasioning actual bodily harm (s254) — Relevant mitigation: youth, first offender, trivial circumstances.
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25 June 2007 |
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Court set aside maximum fine imposed without inquiry into appellant's ability to pay; ordered reassessment after means examined.
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Sentencing — Fine imposed without inquiry into means — Excessive sentence — Statutory maximum fine under National Parks and Wildlife Act s110(b) — Guilty plea and first offender — Default imprisonment.
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20 June 2007 |
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Retrospective termination without notice breached contracts; plaintiffs awarded notice pay and contractual gratuity, no leave or costs awarded.
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Employment law — breach of contract — retrospective termination without notice — payment in lieu of statutory notice — contractual gratuity — assessment of damages — absence of evidence of leave — Industrial Relations Court jurisdiction — no costs awarded.
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18 June 2007 |
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Court upholds anti‑defection clause as constitutional; independents unaffected; ministerial appointment alone not automatic floor‑crossing.
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Constitutional law — anti‑defection (section 65(1)) — judicial review jurisdiction — Chapter IV rights and permissible limitations under section 44 — meaning and application of 'crossing the floor' — ministerial appointment and constructive resignation.
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14 June 2007 |
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Service by post to an incorrect address while the defendant was abroad was invalid; default judgment set aside.
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Civil procedure — Service by post (O.10 r.1(2)(a)) — valid only if defendant within jurisdiction and sent to usual/last known address; misaddressed writ and defendant abroad render service invalid — default judgment set aside; execution unlawful; reimbursement of sheriff fees; defence to be filed within 14 days.
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6 June 2007 |
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Service by post to a wrong address while the defendant was abroad rendered the default judgment irregular and set aside.
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Civil procedure — Service by post (O.10 r.1(2)(a) R.S.C.) — validity requires defendant to be within jurisdiction and use of plaintiff's "last known address" — improperly addressed/posting while defendant abroad renders service invalid — default judgment set aside ex debito justitiae — execution unlawful, sheriff fees repayable.
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6 June 2007 |
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Conviction for indecent assault upheld though charged with defilement; sentence reduced to time served.
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Criminal law — Defilement charge reduced to indecent assault under s155(3) Criminal Procedure & Evidence Code — sufficiency and credibility of complainant’s evidence — sentencing discretion and appellate reduction to time served.
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6 June 2007 |
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Application to stay custody order pending appeal dismissed to avoid disrupting children's residence and risking harm.
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Family law — Stay of execution — Custody and change of residence pending appeal — Welfare of children paramount — Practice (Order 59) to avoid relocating children unless appeal strong or stay exposes children to danger — Balancing interests of successful litigant and applicant.
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5 June 2007 |
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Convictions quashed: co-accused’s confession inadmissible against another and circumstantial evidence insufficient to support guilt.
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Criminal law — Confession — Admissibility of one accused’s confession against a co-accused — s.176(2) Criminal Procedure and Evidence Code; Criminal law — Circumstantial evidence — sufficiency and safety of inference of guilt; Appeal — quashing unsafe convictions; return of seized property.
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4 June 2007 |
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Identification parade evidence upheld; appeal against conviction and ten-year sentence for violent armed robbery dismissed.
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Criminal law — Armed robbery — Identification parade evidence and credibility — Whether stage-managed identification undermines conviction — Sentencing: appropriateness of ten-year term where robbery involved violence, bodily injury and property damage.
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4 June 2007 |
| May 2007 |
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Decree nisi granted where respondent deserted the petitioner for over three years, satisfying Divorce Act section 5(b).
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Family law — Divorce — Desertion under s.5(b) Divorce Act — Proof of three years' uninterrupted desertion — Jurisdiction by domicile — Decree nisi granted.
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24 May 2007 |
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Court held that "Malavi" is not a protected name under the Protected Flag, Emblems and Names Act; no ministerial permission required.
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Constitutional right to form political parties — Political Parties (Registration) — Justiciability of declaratory relief where Registrar’s interpretation may prevent registration — Interpretation of Protected Flag, Emblems and Names Act — "protected name" is a closed definition; spelling/variants not automatically protected.
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15 May 2007 |
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Confession held voluntary and materially true, corroborated by external pointers; alibi dismissed and sentence affirmed.
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Tort
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Evidence
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Confession statements — Voluntariness and weight under s176 Criminal Procedure and Evidence Code
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Corroboration and pointers — Recent possession and demonstration to police
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Criminal Procedure — Alibi and burden — Prosecution to negative alibi where independent corroboration exists
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6 May 2007 |
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Appellant's possession of identified stolen goods, corroborating witnesses and unexplained bank deposits justified dismissal of appeal.
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Criminal law — burglary and theft — possession of recently stolen property — identification and corroborative evidence; Criminal procedure — amendment of charge under section 151 — requirement of trial court consent and absence of defence objection; Evidence — failure to call alleged witness and destroyed electronic evidence — adverse inference where unsupported; Criminal evidence — unexplained large bank deposits as corroborative of proceeds of crime.
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2 May 2007 |
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Sentence reduced where proved theft amount was far lower than charged and procedural irregularities were curable.
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Criminal law — proof of amount for sentencing — conviction under section 319 (obtaining by false pretences) — incorrect application of sections 254(1), 259(2) and 157(1)(b) — curable irregularities under section 5(1) — sentence reduction.
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2 May 2007 |
| April 2007 |
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Whether statutory immunity under section 153 shields the appellant where detention of the respondent’s vehicles was in bad faith.
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Customs law — Statutory immunity — Section 153 — Bad faith exception to immunity and liability for damages
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Civil procedure — Originating summons — Suit for damages appropriate where legal question predominates and facts undisputed
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15 April 2007 |
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Conviction on an unequivocal guilty plea affirmed; sentence reduced from 36 to 24 months due to youth and first-offender status.
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Criminal law — Dangerous drugs — Possession of Indian hemp (3,240g) — Guilty plea — Conviction confirmed — Sentence manifestly excessive — Young first offender — Sentence reduced from 36 to 24 months with hard labour.
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15 April 2007 |
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Conviction on guilty plea confirmed; sentence reduced from 36 to 24 months for possession of Indian hemp.
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Criminal law — Dangerous Drugs Act — possession of Indian hemp (3240g) — guilty plea and admission of facts — conviction confirmed — sentence manifestly excessive — reduction from 36 to 24 months — mitigating factors: youth and first offender.
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15 April 2007 |
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Conviction on an unequivocal guilty plea confirmed; sentence for possession of 3,240g Indian hemp reduced from 36 to 24 months.
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Criminal law — Dangerous Drugs — Possession of Indian hemp (3,240g) — Guilty plea and admission of facts — Sentence review — Excessive sentence — Youth and first offender as mitigating factors.
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15 April 2007 |