Results.
40 judgments found.
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| January 2008 |
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An employee’s retirement does not preclude entitlement to statutory severance; refusal to pay is unlawful.
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Employment law — Severance allowance — Section 35 Employment Act 2000 — Entitlement on retirement — Statutory construction — Absence of express exclusion — Declaratory relief — Costs follow event.
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30 January 2008 |
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Court upholds equitable property division on divorce and awards additional compensation for burning the appellant’s clothes.
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Divorce — Distribution of matrimonial property — equitable division; contribution to property on spouse’s parental land; domestic violence — assault and destruction of property; damages for burning clothes; evidentiary weight of medical reports.
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30 January 2008 |
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Applicant failed to prove customary ownership; court preferred senior traditional authority’s ruling and dismissed the claim with costs.
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Customary land dispute — allocation and occupation — burden of proof on balance of probabilities — credibility of customary authorities and prior traditional/administrative rulings — retrial ordered under Courts Act s.39 (jurisdictional defect in lower court).
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24 January 2008 |
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Agent’s apparent authority conferred equitable rights; purchaser with stronger equity entitled to conveyance and caution removed.
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Agency and apparent authority — equitable interests arising from imperfect compliance with Land Act (s.24A) — cautions to protect equitable interests — money had and received for failed consideration.
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24 January 2008 |
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Plaintiff’s hearsay evidence failed to prove negligence or employer vicarious liability; claim dismissed with costs.
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Tort
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Negligence — Proof of negligence on balance of probabilities
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Vicarious liability — Employer’s liability for employee’s acts while returning to work
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Evidence — Hearsay and documents — Effect of adopted statements and untendered police abstract
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24 January 2008 |
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Plaintiff's hearsay evidence failed to prove driver negligence; claim dismissed and vicarious liability not established.
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Motor-vehicle negligence; vicarious liability; burden of proof (balance of probabilities); inadmissibility/limited value of hearsay; undisclosed/non-tendered police abstract not evidence; party suppressing own evidence improper.
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24 January 2008 |
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Owner liable in tort for passenger injuries where minibus was not roadworthy and driver was unlicensed.
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Tort
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Carriage by road — Owner’s duty to ensure roadworthiness and passenger safety — Liability for mechanical failure
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Evidence — Uncontroverted plaintiff testimony corroborated by police and medical reports — Duty still on owner to show reasonable maintenance and competence of driver
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24 January 2008 |
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Owner liable where an unroadworthy minibus and an unlicensed driver caused passenger injuries.
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Negligence — carrier's duty to passengers — vehicle roadworthiness and maintenance — liability despite mechanical fault — unlicensed driver.
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24 January 2008 |
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Headmaster’s disclosure of a minor pupil’s positive pregnancy test was privileged; subsequent republication was not, claim dismissed.
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Defamation — publication of medical test results; qualified privilege — headmaster in loco parentis informing parents; republication and loss of privilege; weight of conflicting medical reports.
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24 January 2008 |
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The court upheld the plaintiff's customary title and boundary as demarcated by local authorities, awarding possession and costs.
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Customary land — Title and possession — Weight of evidence of village headman, Group Village Headman and Traditional Authority — Boundary demarcation upheld — Credibility of witnesses; staged witness — Magistrate jurisdiction over ownership disputes (section 39 Courts Act).
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24 January 2008 |
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Court dismissed State's bid for closed proceedings and witness anonymity for lack of sufficient evidential justification.
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Criminal procedure — Right to public trial; in camera proceedings and witness anonymity; statutory exceptions (Courts Act s.60; Crim. Proc. s.71); burden to show necessity; requirement of real and substantial risk; accused's fair trial and disclosure rights
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24 January 2008 |
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Employee terminated without specified misconduct; dismissal unfair and severance payable despite notice pay.
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Employment law — unfair dismissal — failure to state reasons for dismissal — court’s power to amend pleadings to give statutory remedies — statutory regime supersedes common law on remedies — severance pay payable notwithstanding notice pay — prior warning requires fresh misconduct for further discipline.
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23 January 2008 |
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Stay pending appeal granted on condition the appellant deposits the US$8,827.44 judgment sum into court within 14 days.
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Civil Procedure
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Stay of Execution Pending Appeal — Discretionary principles, bona fides of appeal and impecuniosity of judgment creditor
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Security for Stay — Requirement that appellant deposit judgment sum into court as condition for stay
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23 January 2008 |
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A stay pending appeal was granted on terms after applicant showed the appeal was arguable and respondent might be unable to repay.
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Civil procedure — Stay of execution pending appeal — Court's discretion — bona fide appeal versus delay — burden to show respondent's inability to repay — Warsaw Convention defence — security by payment into court.
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23 January 2008 |
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Court may restore a struck-off summons under procedural rules; matter not academic if substantive issues remain; costs shared.
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Civil procedure — Restoration of struck-off summons — Court’s discretion under Order 32 r 5/4 and Order 35 (rules) — Setting aside ex parte orders — Academic/mootness objection — Costs: each party to bear own costs.
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23 January 2008 |
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Court granted injunction restraining respondent’s sale of charged property, finding respondent acted oppressively and in bad faith.
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Equitable relief — interlocutory injunction to restrain sale of charged property; Chargee’s duty of good faith and caution when selling charged property; surplus proceeds held on trust for chargor; requirement of valuation to protect chargor’s interest; costs and indemnity where applicant defaulted but chargee acted oppressively.
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23 January 2008 |
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Appeal: court set aside inconsistent magistrate order; husband liable for compensation, maintenance, and property restitution.
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Family law — dissolution of marriage — appellate review of inconsistent lower court orders; compensation awards; maintenance of child and school fees; contribution to matrimonial house; abandonment after HIV diagnosis.
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23 January 2008 |
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Application to discharge injunction dismissed for failure to disclose ongoing chieftaincy dispute and breach of clean‑hands principle.
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Civil Procedure — Interlocutory Injunction — Discharge of injunction where applicant failed to disclose material facts
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Equity — Clean Hands Doctrine — Applicant who procures or benefits from proceedings without full disclosure disentitled to equitable relief
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Administrative Law — Consent Judgment by State Representative — Irregularity where other contesting party is not heard
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23 January 2008 |
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Applicant's failure to disclose parallel chieftaincy proceedings and irregular consent order barred equitable relief; injunction maintained.
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Chieftaincy dispute; consent judgment entered by Attorney General; duty to disclose material facts; parallel proceedings; interlocutory injunction; equitable relief; clean hands doctrine; procedural irregularity in obtaining consent order.
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23 January 2008 |
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Application for leave to appeal out of time denied; "requisite payment" construed contextually and mortgage accounting must follow established rules.
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Civil procedure — leave to appeal out of time; Mortgage law — meaning of "requisite payment"; Mortgagee’s security and equitable accounting; Interest on interest (no compound interest absent express contract); Costs — not awarded except when pleaded as just allowances.
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22 January 2008 |
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Adultery proved beyond reasonable doubt; court granted divorce, custody to the applicant and maintenance by the respondent.
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Family law — Divorce — Adultery as ground for divorce; Standard of proof for adultery—beyond reasonable doubt; Absence of respondent at hearing; No collusion or condonation; Custody, maintenance and access orders.
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22 January 2008 |
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Whether a former corporate secretary may represent a deputy director where his prior role creates an apparent conflict of interest.
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Conflict of interest — appearance of bias — legal practitioner who served as corporate secretary and board adviser must decline where clients' interests appear prejudiced — justice must be seen to be done (R v Sussex principle).
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22 January 2008 |
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High Court may transfer employment disputes to the Industrial Relations Court; retention requires special reasons.
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Constitutional law — High Court original jurisdiction v subordinate courts — Industrial Relations Court jurisdiction — Transfer of proceedings — Retention of jurisdiction requires special reasons — Irregularity and inherent jurisdiction.
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22 January 2008 |
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Permanent injunction granted where alleged transfer by plaintiff’s minor son was legally deficient and defendant failed to verify title.
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Civil Procedure — Injunctions — Extension and grant of permanent injunction where claimant’s competing title is weak
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Property Law — Transfer of Land — Alleged sale by a minor and customary sanction within municipal traditional housing area
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Agency — Capacity and Authority — Whether acts of a minor or relatives can bind the owner as agents
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22 January 2008 |
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Permanent injunction granted where defendant relied on a minor’s purported sale without verifying title or authority.
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Injunctions — permanent vs interim — title to land — purchase from a minor — capacity to contract — agency of relatives — jurisdiction of traditional chiefs versus municipal assembly — caveat emptor — balance of convenience.
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22 January 2008 |
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Court refuses consolidation without hearing all affected parties and declines to dismiss an injunction application before it is heard.
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Civil procedure — consolidation of actions (Order 4 r.9) — common question of law or fact — requirement to hear all affected parties before ordering consolidation — interlocutory injunction and procedural commencement of suit.
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21 January 2008 |
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Consolidation under Order 4 r.9 is permissible for common issues, but cannot be ordered without hearing all affected parties; interlocutory injunction will not be dismissed before hearing.
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Civil procedure — Consolidation of causes under Order 4 r.9 — Permissible where common question of law or fact exists — Consolidation may be ordered even with different parties; but no consolidation without hearing all affected parties. Interlocutory relief — Application for injunction may be heard separately; dismissal for failure to commence originating process inappropriate before hearing applicant
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21 January 2008 |
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Loss of the trial record does not alone justify bail pending appeal; exceptional circumstances are required.
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Criminal Procedure s355(1) — Bail pending appeal — Presumption against bail after conviction — Exceptional or special circumstances required — Missing trial record alone insufficient to justify bail pending appeal.
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21 January 2008 |
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Bail pending appeal granted due to unfair continued detention while co-accused were released on bail.
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Criminal procedure — Bail pending appeal (s.355) — Exceptional circumstances and likelihood of success — Missing lower court record — Parity with co-accused — Conditions of bail.
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21 January 2008 |
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Court upheld conviction based on recovered property and confession, limited conviction to one incident and reduced the theft sentence.
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Criminal law — duplicity of charge; admissibility of extra‑judicial confession after plea of not guilty; corroboration by recovered property; sentencing—reduction and concurrent sentences.
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16 January 2008 |
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Conviction quashed because identification evidence was inconsistent, uncorroborated and no identification parade was conducted.
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Criminal law — Identification evidence — Reliability and inconsistencies in witness identification; absence of identification parade; prosecution’s failure to call corroborating witness — Conviction unsafe and quashed.
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16 January 2008 |
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Whether the defendant was bound by vehicle hire contracts entered by an employee lacking ostensible authority; court dismissed the applicant’s claim.
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Agency/Ostensible authority — burden of proof on person alleging agency; employee’s authority limited by role; forged cheques and bank refund undermine claim of authority — no binding contract with employer.
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15 January 2008 |
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Whether statutory consultation occurred and whether breach of a party‑nomination convention vitiated presidential appointments; court found statutory consultation satisfied, appointments valid.
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Constitutional and Administrative Law — Appointments — Consultation with political party leaders — Consultation requires sufficient information, opportunity to respond and genuine consideration; decision‑maker may reject views after consideration — Electoral Commission Act s 4(1)
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15 January 2008 |
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Whether the President complied with statutory consultation for Electoral Commission appointments and whether a party-nomination convention is legally enforceable.
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Constitutional law — Appointments — Electoral Commission Act s.4(1) — meaning of ‘consultation’ — consultation requires meaningful deliberation but does not bind decision-maker to accept views; Constitutional convention — appointment from party nominees — existence recognised but non-justiciable; Judicial review — statutory compliance v. convention; Costs — interlocutory and substantive allocation.
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15 January 2008 |
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A widow's statutory right to household belongings recognized, but claim dismissed for failure to specify and produce an inventory.
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Wills and Inheritance Act s16(3) — widow's right to household belongings; definition of household belongings (s2(1)); necessity of specifying and producing an inventory; interlocutory injunction discharged; remedial preference for amicable resolution where respondents offer return.
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13 January 2008 |
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Uncontested evidence of physical abuse, sexual coercion and neglect established cruelty; decree nisi granted and custody awarded to the mother.
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Divorce — Cruelty as ground for divorce; legal cruelty requires actual or probable injury to mental or bodily health; uncontested evidence admissible where due service and no collusion; custody — welfare of the child paramount; presumption in favour of mother for young children; decree nisi granted; parties to bear own costs.
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11 January 2008 |
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Proceedings under the Chiefs Act must ordinarily be begun by Originating Summons, not displaced by the Judicial Review Act.
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Civil procedure — mode of commencement — Originating Summons under Order 5 rule 3 for proceedings under an Act — relationship with Judicial Review Act — administrative law procedure.
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10 January 2008 |
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Court exercised discretion to admit late defence witness statements and allow late-filed skeleton arguments, overruling plaintiff’s objections.
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Civil procedure — admissibility of late-filed written witness statements — court’s discretion to admit evidence; Skeleton arguments — timing and allowing late submissions — trial fairness and judicial discretion.
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9 January 2008 |
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Plaintiff awarded K50,000 and costs for brief false imprisonment and attendant humiliation.
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False imprisonment — assessment of damages — brief detention — compensation for loss of liberty and injury to feelings; default assessment in defendant’s absence; award of K50,000 and costs.
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8 January 2008 |
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Court held alleged twenty‑year lease unproven, granted possession and mesne profits, dismissed unparticularised special damages.
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Contract Law — Parol Evidence — Admissibility of extrinsic evidence to vary a written lease — Burden to prove a superseding lost agreement
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Property Law — Lease — Whether a one‑year lease renewable annually was superseded by an alleged twenty‑year fixed lease
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Damages — Special Damages — Requirement of pleading particularity and proof of causal link for loss of business
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6 January 2008 |