Results.
51 judgments found.
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| December 2009 |
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The respondent’s second voter registration constituted the offence; the first registration was lawful and sentence reduced to nine months.
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Electoral law — Voter registration — Eligibility and single registration requirement (ss.15, 18) — Offence of obtaining registration in more than one area (s.115(a)(iii)) — Sentencing under general penalty provision (s.118(1)) — mitigation for guilty plea and first offender
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18 December 2009 |
| October 2009 |
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Presence in getaway vehicle, identification and accomplice evidence sustained robbery conviction; sentence reduced for first offender.
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Criminal law — robbery — identification, recovery of property and weapons — accomplice/co-accused evidence competent — conviction safe; sentence reduced for first offenders
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27 October 2009 |
| September 2009 |
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Prolonged detention without being brought before court (over 15 months) violated s42(2)(b) and warranted unconditional release.
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Constitutional law — Right to be brought before a court within 48 hours (s 42(2)(b)) — Failure to comply — Inexcusable prolonged detention — Bail/remedy under s 42(2)(e) — Availability of local court; State’s procedural obligations
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30 September 2009 |
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Writ limits claims to general damages; lender breached by failing to disburse full loan, plaintiff awarded general damages net K56,370.
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Contract law — loan agreement — disbursement in installments — reasonable time for full disbursement; pleadings — Writ limits recovery; special damages inconsistent with amended Writ fall away; retention of security documents — no implied term to release where lender breached; counterclaim for repayment of partial advance dismissed.
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25 September 2009 |
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Silence after contractual probation can amount to tacit confirmation; employer cannot unilaterally vary terms or demote without consent.
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Employment law — probation and confirmation — tacit confirmation where employer silent after contractual probation; employer cannot unilaterally extend probation or vary contract terms — right to be heard and fair labour practices (Constitution ss31, 43) — entitlement to post-probation benefits.
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11 September 2009 |
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Conviction for burglary upheld on circumstantial evidence; sentence reduced from six to 3½ years for mitigation reasons.
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Criminal law — Burglary/Breaking into a building — Possession of recently stolen property as circumstantial evidence — Flight and implausible explanation — Sentence review and reduction for young first offender; mitigation not considered at trial
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1 September 2009 |
| August 2009 |
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25 August 2009 |
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13 August 2009 |
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Appeal against conviction after guilty plea barred; 18 months penal servitude upheld for unlawful wounding with a panga.
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Criminal law — unlawful wounding — plea of guilty — appeal barred under s.348 Criminal Procedure & Evidence Code — sentence review — use of lethal weapon (panga) — mitigating factors (first offender, plea)
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6 August 2009 |
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Defendant wrongfully terminated the supply contract without required written notice and negligently caused hazardous fuel spillage.
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Contract law — wrongful termination for failure to give contractual written notice; Substitution clause — dealer’s right to procure shortfall after 72 hours; Tort — negligence for unsafe removal causing fuel spillage and fire risk; insufficient evidence for nuisance or defamation
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4 August 2009 |
| July 2009 |
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Convictions for corruption quashed where payments were shown to be customary tokens, creating reasonable doubt as to corrupt intent.
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Criminal law — Corrupt Practices Act s.24(1) — Distinction between customary gifts and corrupt inducements — Burden and standard of proof beyond reasonable doubt — Rehearing on appeal and safety of convictions — Custom as evidential defence to corruption charge
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22 July 2009 |
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Failure to hear mitigation led the court to reduce and backdate concurrent sentences for assault and theft.
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Criminal appeal — sentence only; failure to afford opportunity for mitigation — appellate reduction of sentence; assault occasioning actual bodily harm; theft; concurrent sentences; backdating to remand
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22 July 2009 |
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Amendment of charge and recovery/identification of rifle justified conviction; nine-year custodial sentence for armed robbery upheld.
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Criminal procedure — Amendment of charge (s.151(2)) — substitution of firearm type — prejudice and ends of justice; Evidence — identification and recovery of weapon linking accused to robbery; Criminal sentencing — aggravated robbery with firearm — custodial sentence and mitigating factors (health/HIV)
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22 July 2009 |
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Court affirms Industrial Relations Court compensation assessment and rejects unrelated defamation and unlawful imprisonment claims.
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Employment law — unfair dismissal — assessment of compensation under s63 Employment Act — choice of salary base, multiplier and discretionary boost — Industrial Relations Court jurisdiction excludes defamation and unlawful imprisonment claims
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21 July 2009 |
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Court upheld unfair dismissal compensation and boost, ruling unrelated defamation and detention claims are outside Industrial Relations Court jurisdiction.
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Employment law — unfair dismissal — assessment of compensation — use of salary at dismissal and multiplier — judicial discretion to boost award for devaluation — Industrial Relations Court lacks jurisdiction over defamation and unlawful detention claims
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21 July 2009 |
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Bailee wrongfully withheld and released a delivered engine; contingent commander converted it—damages awarded for conversion.
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Bailment — bailee's duty of care; bill of lading vs customs release; wrongful detention and wrongful release; conversion of goods; measure of damages for conversion (market value/replacement cost)
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21 July 2009 |
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Possession of keys and unrecovered property, plus inconsistent purchase claims, upheld conviction; sentence reduced to 36 months.
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Criminal law — Burglary and theft — Circumstantial and direct evidence — Possession of keys as link to breaking in — Credibility of defence purchase claim — Sentencing: youth as mitigatory factor balanced against breach of trust and unrecovered property
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15 July 2009 |
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Termination for alleged misuse of a trust vehicle was unfair due to authorization and lack of hearing; damages awarded.
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Employment law — unfair termination; procedural fairness and right to be heard (Constitution s.43); misuse of employer property; authority to use trust vehicle; general damages for wrongful dismissal
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15 July 2009 |
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Conviction quashed due to material contradictions in prosecution evidence and improper admission of medical report under Section 180.
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Criminal law — assault occasioning actual bodily harm; contradictions in prosecution evidence — reasonable doubt — admissibility of medical/expert reports — section 180(3) Criminal Procedure & Evidence Code — consent or service with notice required — improperly admitted report excluded — conviction quashed
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12 July 2009 |
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Appellate court raised compensation multiplier from 12 to 15 for unfair dismissal, emphasizing qualifications and labour-market mitigation.
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Employment law — unfair dismissal — assessment of compensation under section 63(4) Employment Act — multiplier approach — factors: age, qualifications, labour market, mitigation — appellate interference with discretionary awards
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8 July 2009 |
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Court reviewed defective bail bond, rejected excessive K1.7bn demand, set reasonable non-cash bail and travel restrictions.
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Criminal procedure — Bail — Defective bail bond (no sum specified) — Proper remedy: review under s.362 Criminal Procedure and Evidence Code — s.12B Corrupt Practices Act — Bail must not be excessive; rumours insufficient to justify high bail — Excessive bail tantamount to denial of liberty
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7 July 2009 |
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Withdrawal and reallocation of an allocated plot quashed for failure to give reasons and opportunity to be heard.
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Administrative law — Procedural fairness; Section 43 Constitution — right to reasons and hearing; Wednesbury unreasonableness; development delays caused by authority; Section 44(4) expropriation not established; re-entry/land reallocation
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6 July 2009 |
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Appellate court finds matrimonial home jointly owned (2/3–1/3), quashes unsupported damages, and orders husband to build wife a house within one year.
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Family law
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— customary marriage — matrimonial property: wife’s direct/indirect contributions can create joint interest; equitable division (2/3–1/3)
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— custody: welfare principle supports awarding custody to primary caregiver. Civil damages: awards must be supported by evidence. Customary law obligation: husband required to build a house for customary wife; obligation survives divorce
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6 July 2009 |
| June 2009 |
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Court varied consent-judgment payment terms after finding defendant’s affidavit adequate and awarded costs to the plaintiff.
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Consent judgment — Variation of payment terms — Application following Assistant Registrar direction — Sufficiency of affidavit disclosing income and obligations — Court-ordered instalments and costs awarded to plaintiff
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28 June 2009 |
| May 2009 |
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Electoral Commission lawfully rejected nomination: section 83(3) limits presidents to a maximum of two consecutive terms, non-term service excluded.
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Constitutional law — Interpretation of section 83(3) — "a maximum of two consecutive terms" limits presidential tenure; non-term service filling vacancies not counted as a term — Right to be heard (s43) and PPEA remedies — Electoral Commission decision lawful
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15 May 2009 |
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A presidential nominee has a right to administrative redress and may pursue judicial review if the electoral timetable forecloses those remedies.
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Electoral law — nomination of presidential candidates — application of Division 2 provisions mutatis mutandis to Division 3 — duty to notify defects — pre-court remedies and stays — judicial review where electoral calendar removes administrative remedy — withdrawal only by validly nominated candidate (s52)
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7 May 2009 |
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Court dismissed the divorce petition for want of prosecution due to inordinate delay and lack of proof of service; interlocutory applications dismissed too.
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Family law — Divorce — Delay and want of prosecution — Validity and service of originating petition — Interlocutory applications dependent on main action — Transfer to Magistrates’ Court; jurisdictional limits (s.39(2)(e) Courts Act) — Dismissal includes ancillary applications — Costs: each party to bear own costs.
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6 May 2009 |
| April 2009 |
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Respondent ordered to pay K80,000 for cruelty and failure to provide a customary matrimonial house; no child maintenance ordered.
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Family law — divorce for cruelty — effect of admission of cruelty — property distribution where respondent consented to removal — customary law obligation to provide matrimonial house — monetary award in lieu of house — child maintenance where paternity disputed
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23 April 2009 |
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Respondent admitted cruelty; court awarded K80,000 compensation and K60,000 for a house, but made no child maintenance order.
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Family law — dissolution of marriage for cruelty — respondent's admission as sufficient proof; Property — redistribution and consent; Customary law — husband’s obligation to provide matrimonial home; Monetary compensation in lieu of house; Child maintenance — paternity issues; Evidence — possession of weapon not conclusive of intent to kill
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23 April 2009 |
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Interim injunction refused: damages adequate and balance of convenience favoured defendants running the maize mill.
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Interim injunction — American Cyanamid test — serious issue to be tried — adequacy of damages as remedy — balance of convenience — status quo in family business dispute
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23 April 2009 |
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The accused convicted of manslaughter for stabbing the deceased; provocation and self-defence were rejected.
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Criminal law — Manslaughter — Unlawful act causing death — Eyewitness evidence — Provocation and self-defence considered and rejected — Mental fitness examined
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21 April 2009 |
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Whether the respondent unlawfully stabbed his hirer to death and whether self-defence or provocation applied.
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Criminal law — Murder — Actus reus and mens rea — Malice aforethought — Self-defence and provocation — Circumstantial evidence — Disposal and sale of victim’s property as evidence of intent and consciousness of guilt
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21 April 2009 |
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Appeal dismissed: convictions upheld despite reliance on uncorroborated co-accused evidence; sentence affirmed.
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Criminal law — armed robbery — accomplice/co-accused evidence — corroboration not mandatory but requires caution; burden of proof remains on prosecution; identification parade unnecessary where complainants could not identify assailants; appellate rehearing; sentence discretionary but must be adequate
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21 April 2009 |
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Court found cruelty and adultery proved, granted decree nisi, endorsed shared custody; each party to bear own costs.
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Matrimonial law — jurisdiction by domicile of choice; cruelty as ground for divorce (mental harm, persistent humiliating conduct); adultery proven by cohabitation, inclination and opportunity; decree nisi granted; shared custody endorsed
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16 April 2009 |
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The applicant's handcuffing and prolonged detention by security amounted to false imprisonment warranting exemplary damages.
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False imprisonment; detention by private security; reasonable grounds for arrest; humiliation and exemplary damages; liability of security guards
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15 April 2009 |
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Partnership agreement upheld; fraud allegation rejected; plaintiff awarded K100,000, 10% interest and costs; claim not statute-barred.
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Partnership law — validity and enforceability of handwritten partnership agreement — allegation of fraud and blackmail — evidence of contributions; Prescription/statute-bar — last payment rule; remedy — award of partnership share, interest and costs
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15 April 2009 |
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Vacant possession application dismissed where the mortgage action was not properly commenced and material disputes required trial.
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Mortgage action — Order 88 RSC — improper commencement (no writ/originating summons) — serious disputes of fact — affidavit evidence insufficient — prior order setting aside sale and repayment directions — vacant possession dismissed
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14 April 2009 |
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Appellate court set aside order to sell and equally divide two houses and a vehicle, directing further submissions on distribution.
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Family law — Divorce — Distribution of matrimonial property — Evidence of parties’ contributions and intentions — Joint ownership not inferred from marriage — Sale and equal division of houses and car set aside on appeal
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14 April 2009 |
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Court set aside lower custody order, granting father custody where lower court improperly relied on grandmother's care over parental rights.
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Family law — Child custody — Best interests of the child paramount; constitutional right of children to be raised by their parents; parental wishes material to custody; lower court erred by transferring primary care to grandmother without justification
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14 April 2009 |
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Plaintiff failed to prove he was induced by a misrepresenting valuation report; claim dismissed with costs.
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Contract — Misrepresentation — Reliance on valuation report — Timing and provenance of report — Inducement to contract — Rescission and refund — Burden of proof on balance of probabilities
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5 April 2009 |
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A police officer’s unlawful use of a firearm during pursuit caused three manslaughter convictions; colleagues acquitted for lack of proof.
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Criminal law — Manslaughter by law‑enforcement officer; Causation — single shot causing collision deaths; Use of force — Police Act s30 and international standards; Joint enterprise and aiding and abetting — insufficiency of mere presence; Amicus curiae — human‑rights commission admitted
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1 April 2009 |
| March 2009 |
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Taxation certificates obtained in counsel’s absence should be challenged by review under Order 62 r35 or set aside by the taxing master.
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Civil procedure — Taxation of costs — Certificate of taxation obtained in absence of counsel — Review under Order 62 r 35 — Taxing master’s power to set aside and extend time (Or 62 r 34(4), r 22) — Lack of authority of counsel — Nullity of steps taken without proper instructions
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30 March 2009 |
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A customary marriage was dissolved for mutual cruelty; court reduced compensation and ordered the appellant to build the respondent a house.
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Customary marriage — cruelty and irretrievable breakdown; custody — welfare paramount; property orders — house provision versus sale or cash compensation; procedural fairness — right to call witnesses; appellate correction of unsupported findings
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24 March 2009 |
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Court confirmed taxation for rents, trees and trespass, adjusted demolition damages to K5,505,964, and excluded late evidence.
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Costs and taxation — appropriate procedure for challenging a taxing officer’s decision (Order 62 review vs appeal) — taxation of costs for trespass, Government land rentals and tree valuation — measure of damages for demolished buildings: cost of repair when repairs can reasonably be undertaken — admissibility of late/new evidence
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22 March 2009 |
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Court apportioned matrimonial property after divorce, finding cattle already distributed and awarding land to the applicant.
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Family law — Divorce — Distribution of matrimonial property — Determination of ownership and exclusion of pre-marital or third‑party property — Allocation of movable chattels and immovable property (land and business asset)
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22 March 2009 |
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Custody to the mother and failure to fulfill chikamwini duties justified awarding household effects and the three-door house to the plaintiff.
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Matrimonial property — Division after dissolution — Award of household effects to custodian parent; chikamwini (matrilineal) customary obligation to build wife a house — failure to build affects division; sale of matrimonial chattels during pending proceedings.
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13 March 2009 |
| February 2009 |
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Applicant failed to prove lawful acquisition; restriction order under the Corrupt Practices Act was upheld.
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Corrupt Practices Act s.23(1),(5) — Restriction (preservation) orders — Applicant’s burden on reversal application — balance of probabilities — unexplained rapid acquisition and inconsistent dates justify upholding restriction
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25 February 2009 |
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Court found magistrate lacked jurisdiction but granted respondent specific performance and reversed the third-party sale.
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Jurisdiction of subordinate courts over title to land; part performance and equitable interest from substantial payments; repudiation by seller and lapse of time; bona fide purchaser for value without notice; specific performance and equitable relief on appeal by rehearing
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23 February 2009 |
| January 2009 |
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Court upheld compensation order but ordered respondent to return K18,900 and allow recovery of appellant’s property.
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Family law — Divorce — Responsibility for marriage breakdown; compensation for matrimonial breakdown; distribution and recovery of matrimonial property; credibility findings on disputed assets and cash
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20 January 2009 |
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Court refused interim injunction and stay preventing the Electoral Commission enforcing revised nomination fees, leaving judicial review to proceed.
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Electoral law — Power to fix nomination deposits — Judicial review and interlocutory injunction — American Cyanamid principles — Public interest in preserving electoral calendar — No statutory duty to consult.
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16 January 2009 |