Results.
237 judgments found.
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| December 2008 |
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Appellate reduction of sentence where magistrate failed to give reasons and consider statutory suspension for a first offender.
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Criminal Law
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Sentencing — Custodial sentence for first offenders — Application of ss 339 and 341 Criminal Procedure and Evidence Code
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Sentencing Procedure — Requirement to give reasons and record good grounds for imprisonment — Appellate interference where absent
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Defences and mitigation — Effect of plea and caution statement on claims of provocation or self-defence
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22 December 2008 |
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Court upheld convictions for forgery and uttering but reduced sentences on counts one and two for mitigating factors and lawful search.
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Criminal Law — Forgery and Uttering — Proof of forged negotiable instrument and participation by custodial signatory
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Criminal Procedure — Search Incident to Arrest — Lawful search without warrant to avoid undue delay — Criminal Procedure and Evidence Code s24
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Sentencing — Mitigating Factors — Reduction for first offenders and botched scheme; undue severity corrected
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21 December 2008 |
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Sale and possession of stolen goods soon after a theft can sustain robbery convictions despite identification gaps.
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Criminal Law
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Robbery — Circumstantial evidence and possession/offering of stolen goods shortly after theft as connecting evidence
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Identification — Defects in identification parade do not necessarily undermine convictions where strong circumstantial linkage exists
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Sentence — Appellate review of magistrate’s sentence and discretion to enhance or uphold based on precedents
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15 December 2008 |
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Conviction for defilement of an imbecile upheld; sentence reduced for failure to consider mitigating factors.
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Criminal Law
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Sexual Offences
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Defilement of an Imbecile — Proof of imbecility may rest on positive lay testimony
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Consent — No defence where complainant is an imbecile
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Sentencing — Appellate reduction where trial court failed to balance mitigating and aggravating factors
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15 December 2008 |
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Circumstantial evidence can sustain convictions for firearm possession, possession of suspected stolen property, and conspiracy; firearm forfeiture upheld, goods to be auctioned.
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Criminal Law
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Possession of Firearm — Circumstantial evidence and constructive possession; guilty knowledge
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Possession of Suspected Stolen Property — Disposal and forfeiture — Sale as found property unless owner found
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Conspiracy — Proof by circumstantial evidence sufficient without commission of substantive offence
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15 December 2008 |
| November 2008 |
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Failure to cite mandatory sentencing provisions is a mere irregularity if the custodial sentence is not excessive.
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Criminal Law
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Sentencing — Suspended sentences for first offenders — Mandatory consideration of ss 339 and 340 Criminal Procedure and Evidence Code
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Procedural Irregularity — Failure to refer to statutory sentencing provisions on record — Not fatal if sentence not wrong in principle — s 5 Criminal Procedure and Evidence Code
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18 November 2008 |
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Ex-parte interlocutory injunction discharged where applicant suppressed material facts and failed to disclose alternative remedy (arbitration).
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Administrative law — Judicial review — Ex-parte interlocutory injunction; duty of full and frank disclosure; suppression of material facts; availability of alternative remedies (arbitration) under regulatory statute; discharge of ex-parte relief.
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18 November 2008 |
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Ex parte injunction discharged where applicant suppressed material facts and failed to disclose alternative remedy (arbitration).
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Administrative law — ex parte interlocutory injunction — duty of full and frank disclosure — suppression of material facts — alternative remedy (arbitration) — revocation of broadcasting/radio licence — clean hands doctrine.
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18 November 2008 |
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12 November 2008 |
| October 2008 |
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A single-member bench lacked jurisdiction to hear the appeal; appeal declined and attendance costs awarded against the appellant.
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Appellate procedure — composition of bench — a single member of the Supreme Court of Appeal lacks jurisdiction to determine appeals (s.7(b) Supreme Court of Appeal Act; Astra Pharma v Adventist Health Services). Costs for attendance where jurisdiction improperly invoked
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28 October 2008 |
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Interlocutory injunction denied: arguable title but damages adequate and status quo favored; application dismissed with costs.
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Civil procedure — Interlocutory injunction — Good arguable claim; adequacy of damages; bona fide purchaser; balance of convenience; preservation of status quo.
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21 October 2008 |
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Interlocutory injunction refused because widow lacked locus standi and had not obtained probate to establish an arguable estate claim.
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Civil procedure — interlocutory injunction — locus standi of widow/beneficiary — necessity of probate (Wills & Inheritance Act s37) — Statute Law (Miscellaneous Provisions) Act ss4,7,10 — American Cyanamid threshold for interim relief — preservation of status quo.
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21 October 2008 |
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Bicycle vendors were employees, not independent contractors; tax-deduction complaint dismissed for lack of evidence.
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Employment law — employee v independent contractor; commission-paid vendors; statutory definition of "employee" (dependence and control); employment-at-will tempered by statutory and constitutional protections; tax-deduction claim dismissed for lack of evidence.
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19 October 2008 |
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Court found the defendant negligent for jumping the queue and reversing into the plaintiff's minibus, awarding damages, interest and costs.
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Road traffic — Negligence — Queue-jumping and reversing into another vehicle — Proof of damages (repair costs and loss of business) — Court proceeding on plaintiff's case where defence failed to prosecute — Interest for delay at 1% above bank lending rate — Insurer sued under Road Traffic Act.
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19 October 2008 |
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A High Court lacks jurisdiction over a commercial suit filed after the Commercial Division became operational under the 2007 Rules.
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Commercial jurisdiction — High Court (Commercial Division) Rules 2007 — Order 22 rule 5 — Transfer of pending matters — Operational date of Commercial Division — Jurisdictional limits on post-commencement filings.
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16 October 2008 |
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Bail refused: no material change since earlier denial and interests of justice require continued detention.
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Bail — Constitutional right under s42(2)(e) — Discretionary — High Court may grant bail in capital cases — Subsequent applications require material change — Interests of justice: risk of absconding, tampering with evidence, safety of accused.
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16 October 2008 |
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15 October 2008 |
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Bail refused where ongoing domestic and international investigations into alleged murder and stolen vehicle made release premature.
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Constitutional right to bail — not absolute; bail subject to interests of justice — test whether accused will stand trial; serious offences (murder) and ongoing domestic and international investigations justify refusal of bail; State’s need for reasonable time to investigate; court’s discretion to refuse bail when premature.
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15 October 2008 |
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Applicant granted mandatory injunction to recover household goods unlawfully seized as alleged security for a debt.
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Civil procedure — mandatory injunctions — discretionary and exceptional relief — seizure of goods as security — absence of agreement or court order — adequacy of damages — return of unlawfully seized household goods.
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13 October 2008 |
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Whether tenant liable for repair costs and lost rent after vacating premises; court awarded plaintiff K332,487.20.
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Tenancy — breach of tenancy obligations — landlord’s recovery of repair costs and lost rent after tenant vacates; evidence and weight where tenant does not testify; counterclaim for utilities held resolved and dismissed.
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13 October 2008 |
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Interlocutory injunction continued to protect prior local goodwill pending trade‑mark expungement appeal; defendant’s cross‑injunction dismissed.
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Trade marks — interlocutory injunction — prior use and registration — expungement proceedings for non‑bona fide use — balance of convenience and adequacy of damages.
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12 October 2008 |
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Court varied bail: reduced reporting to monthly and allowed temporary passport use for court-authorised travel, other conditions unchanged.
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Bail variation — Section 118(3) Criminal Procedure and Evidence Code — reporting to police — temporary retention and surrender of passport for authorised travel — surety and bond conditions maintained.
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12 October 2008 |
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Assessment of whether to award loss of profits or loss of use and the proper calculation of such damages.
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Tort — assessment of damages — profit‑earning chattel — distinction between loss of profits (special damages) and loss of use (general damages) — proof and particularization of special damages — calculation of loss of profits — mitigation and avoidance of double recovery — recoverability of consequential expenses.
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9 October 2008 |
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Bank lawfully combined accounts and repossessed leased trucks; mandatory injunction refused for lack of strong arguable case.
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Mandatory injunctions — exceptional relief — must show strong probability of success and inadequacy of damages; Banker’s right to combine/set-off accounts; Cross-default clauses; Lessor’s ownership and repossession rights under lease agreements; Balance of convenience.
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8 October 2008 |
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Material factual disputes preclude disposal under Order 41A/14A; the claim must proceed to full trial.
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Civil procedure — Order 41A/14A (Rules of Supreme Court) — determination of question of law — requirement of no material dispute of fact — where factual disputes exist, full trial required; affidavits limited to deponent's own knowledge.
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7 October 2008 |
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Court refused injunction restraining sheriff from auctioning seized property, citing balance of convenience and procedural failures.
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Civil Procedure — Interim Injunction — Restraint of sale of seized property pending determination
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Execution — Sheriff's Sale — Balance of convenience and amount at stake in granting interim relief
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Procedure — Non-attendance and Registry failures — Effect on hearing and disposition of application for interim relief
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1 October 2008 |
| September 2008 |
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Appeal rejects father's bid for custody, reduces maintenance to K2,000, lowers house payment to K90,000, and leaves matrimonial property with respondent.
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Family law — divorce — custody of minor children — best interests of the child; maintenance — assessment of ability to pay and variation of amount; customary obligation to build house for wife — substitution of monetary award; matrimonial property — effect of abandonment and bad faith.
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30 September 2008 |
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An eleventh-hour application to adduce fresh evidence on appeal was rejected as irrelevant and unlikely to affect the trial judge’s decision.
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Civil procedure — Fresh evidence on appeal — Ladd v Marshall criteria — Relevance and probative importance of late evidence — Interpleader and execution of judgment — Ownership disputes over seized goods.
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30 September 2008 |
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Court allowed applicant’s correction under Order 20 r.11 to clarify dismissal of respondent’s application with costs.
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Civil procedure — Order 20 r.11 — correction of clerical mistakes/omissions in judgments — exception to functus officio — clarity of judgments — dismissal of application to set aside default judgment — costs.
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30 September 2008 |
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26 September 2008 |
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Application to set aside default judgment dismissed where defendant lacked a real prospect of success and issue had been decided on appeal.
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Civil procedure — setting aside default judgment — test of meritorious defence: real prospect of success and degree of conviction; Interest — whether interest claim may be independent cause of action when not pleaded with principal — appellate decision precluding re-litigation; res judicata/abuse of process; delay in making application.
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23 September 2008 |
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Bail denied where identification parade linked applicants to armed robbery and murder, creating a real risk of absconding.
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Criminal procedure — Bail — Refusal of bail for serious offences (armed robbery and murder) where identification parade links suspects to crime — Risk of absconding and application of s4(a) Bail Guidelines (Act No. 8 of 2000) — Presumption of innocence and State’s burden to justify continued detention.
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21 September 2008 |
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Bail granted because applicant’s cooperation and likelihood to attend trial outweighed prosecution’s case; strict conditions imposed.
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Bail — Constitutional right (s42(2)(e)) and statutory power (s118 Crim Proc) — primary inquiry: likelihood of attendance at trial — strength of prosecution not sole ground to refuse bail — medical illness not per se basis for bail unless caused by detention — bail granted with strict conditions.
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21 September 2008 |
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Claim for refund of stolen travellers’ cheques dismissed for insufficient evidence and failure to prove compliance with reporting requirements.
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Banking law — travellers’ cheques — contractual 24‑hour reporting requirement; burden of proof for refund claims; adequacy of issuer’s reasons for refusal; agent liability; costs for absent party.
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17 September 2008 |
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Consent is immaterial where the complainant is under 13; conviction and sentence for defilement affirmed.
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Criminal law — Defilement (child under 13) — Consent immaterial; Appeal — belated factual disputes after plea; Sentencing — aggravating factors: repeated acts, threats, pregnancy.
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16 September 2008 |
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Court granted interim injunction against police pending review of refusal to permit political whistle-stop tours.
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Constitutional Law — Freedom of Assembly/Expression/Association — Whether police decision disapproving political whistle-stop tours unlawfully limited constitutional rights — Consideration of Section 44 limitations
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Civil Procedure — Interlocutory Injunction — Grant against police — Requirements: triable issues, inadequacy of damages, balance of convenience
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15 September 2008 |
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Applicant's appeal against conviction and sentence for aggravated robbery dismissed; identification and accomplice evidence upheld.
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Criminal Law
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Identification Evidence — Identification parade procedure and reliability
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Evidence — Hearsay and Accomplice/Confession Evidence — Admissibility and corroboration
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Sentence — Aggravated Robbery — Custodial sentence appropriate; not manifestly excessive
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14 September 2008 |
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Prolonged unlawful detention established as false imprisonment; K600,000 awarded; defamation claim failed.
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False imprisonment — unlawful detention beyond permissible period — assessment of general (non-pecuniary) damages; Defamation — requirement of communication of untrue matter likely to disparage — not established.
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3 September 2008 |
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An agreed adjudication/arbitration clause must be honoured; no special reasons existed to bypass it, so proceedings stayed pending adjudication.
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Arbitration and adjudication clause — enforcement and stay pending adjudication; Termination for convenience — fact‑dependent exercise; Contractual dispute resolution — special reasons required to bypass; Commercial jurisdiction — High Court Commercial Division.
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3 September 2008 |
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Appellant's admissions and corroborating witness evidence established theft beyond reasonable doubt; conviction and sentence affirmed.
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Criminal law — theft — sufficiency and admissibility of evidence — corroboration by accused's admissions — inconsistencies in witness statements not fatal — trial court’s factual findings upheld; sentence affirmed.
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2 September 2008 |
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Appeal against conviction and eight-year sentence for repeated defilement of a child dismissed; identification and medical corroboration upheld.
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Criminal law — Defilement of a child under 13 — Identification by eyewitness and complainant — Medical corroboration of repeated sexual intercourse and STI — Delay in medical examination — Unreliability of speculative allegations of witness coaching — Sentence: appropriateness for repeated sexual abuse.
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2 September 2008 |
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Whether close-range identification and presence in the getaway vehicle established robbery; conviction and sentence affirmed.
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Criminal law — robbery — identification evidence and recognition at close range — presence in getaway vehicle — right of association — adequacy of opportunity to call and cross-examine witnesses — sentence upheld.
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2 September 2008 |
| August 2008 |
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The State must prove why bail should be refused; quantity of drugs and harsh penalty alone do not justify denial.
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Criminal procedure — Bail — Onus on State to show why release would not be in the interests of justice — Quantity of drugs and maximum penalty alone insufficient to justify refusal — Conditions to secure attendance.
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27 August 2008 |
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Short unlawful detentions entitled the plaintiffs to K150,000 each for false imprisonment; pecuniary loss not proven.
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False imprisonment — Constitution s.42(2)(b) 48-hour rule — assessment of damages for short unlawful detention — requirement to plead and prove special (pecuniary) damages — quantum: K150,000 awarded each.
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24 August 2008 |
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Appellant's conviction for pouring boiling water upheld; sentence reduced because mitigating factors were not considered.
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Criminal Law — Offences Against the Person — Unlawful casting of boiling fluid — Mens rea: intent to maim, disfigure or disable — Section 235(g) Penal Code
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Criminal Procedure — Admissibility of Medical Reports — Section 180(3) and exclusionary rule in s.184 of the Criminal Procedure and Evidence Code
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Sentencing — Mitigating factors and first offender status — Discretion on suspension of sentence — Section 340 Criminal Procedure and Evidence Code
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20 August 2008 |
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Whether a registrar correctly treated an application as res judicata after the Supreme Court found counsel lacked authority.
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Res judicata; propriety of legal representation; nullity of acts by unauthorized counsel; review of Registrar’s rulings; setting aside default judgments; stay of execution.
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19 August 2008 |
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A defective, unserved notice of appeal was struck out, but an ex parte stay of execution was not vacated absent serious abuse.
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Civil procedure — defective notice of appeal — requirement to identify appeal/cause number — registry stamp not a cure; Order 2 r.1 remedial powers; ex parte stay under Order 47/1 — service obligations; setting aside ex parte orders under Order 32 r.6.
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19 August 2008 |
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High Court upheld dismissal: factual finding of theft and procedural defects caused no prejudice; s61(2) inapplicable.
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Employment law — unfair dismissal; findings of fact by Industrial Relations Court final on appeal; procedural fairness — prejudice requirement where accused cannot confront accuser; Employment Act s61(2) — equity in dismissal not invoked for serious misconduct.
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19 August 2008 |
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Court deferred bail decision, ordering the State to produce the police docket and further evidence within two weeks.
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Bail — Criminal Procedure s.118; Constitutional right to bail s.42(2)(e) — interest of justice — necessity of police docket and affidavit evidence — prosecution preparedness — adjournment for further material.
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19 August 2008 |
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Bail pending appeal requires exceptional circumstances; short custodial sentence likely to be served justifies conditional release.
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Criminal procedure — Bail pending appeal — "exceptional and unusual circumstances" required — factors include prima facie prospect of success and real risk sentence will be served before appeal — conditions: surrender of travel documents, bond, sureties, reporting obligations.
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18 August 2008 |