Results.
46 judgments found.
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| December 2005 |
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Ex parte leave for judicial review obtained by deported refugees was void for material non‑disclosure and lack of locus standi.
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Refugee Law — Expulsion — Deportation for national security or public order — Application of Article 32 of the 1951 Refugee Convention
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Civil Procedure
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Judicial review (ex parte) — Duty of full and frank disclosure — Material non‑disclosure vitiates leave
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Interlocutory injunction — Impossibility of performance and locus standi — Application of American Cyanamid principles
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28 December 2005 |
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No binding contract where purchaser’s order constituted a counter‑offer varying payment and delivery terms.
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Contract Law
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Formation — Whether a binding contract existed — Counter‑offer v Acceptance — Objective test
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Remedies — Specific Performance — Unavailable where no concluded contract
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13 December 2005 |
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A bailee-defendant is liable where exclusion clause, illegality and contributory negligence defences are unproven.
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Contract Law — Bailment — Bailee for reward's duty of care and onus to prove loss without negligence
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Tort — Negligence — Contributory negligence — Defendant must prove contributory fault by direct evidence
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Evidence/Statutory Law — Illegality and capacity to contract — Statutory breach does not void contract absent clear statutory provision or when it does not go to the root of the contract
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5 December 2005 |
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Owner liable only for current water bill where water boards fail to disconnect after occupier’s non-payment beyond 30 days.
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Water Law — Rates and Charges — Liability of occupier first then owner; effect of bye-laws and disconnection practice
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Municipal Law — Enforcement — Disconnection for non-payment — Discretionary power and consequences of non-enforcement
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1 December 2005 |
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Court upheld consolidation of winding‑up petitions due to overlapping legal and equitable issues, including alleged malice.
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Company Law —
Winding‑up
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Consolidation of petitions — Procedure under Order 4 Rule 9
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Legal remedy with overlapping equitable issues — Effect on consolidation
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Civil Procedure — Affidavit evidence — Unchallenged allegations of malice — Relevance to joinder/consolidation
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1 December 2005 |
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Forfeiture under s159(1) is automatic; duty paid on forfeited goods must be refunded.
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Customs Law
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Forfeiture — Automatic forfeiture of seized goods upon conviction under s 159(1) — No judicial discretion
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Duty on Forfeited Goods — Whether duty paid by convict may be retained when goods are forfeited and realised — Interaction of s 159(1) and s 159(2)
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1 December 2005 |
| November 2005 |
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Appellant’s 12‑year armed robbery sentence confirmed; 6‑year weapons sentence reduced to 4 years.
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Criminal Law
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Sentencing — Armed robbery and weapons possession — Whether sentences manifestly excessive considering mitigating factors and public protection
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Plea of guilty — Discount for guilty plea discretionary — May be withheld in particularly serious or odious offences
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30 November 2005 |
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A consent order is a binding contract and cannot be varied in chambers absent contractual vitiating grounds or a fresh action.
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Civil Procedure
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Consent Orders — Force of a consent order as contract and grounds for variation — Contractual vitiating factors required to set aside consent judgment
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Instalment Orders (Courts Act s 11(x)) — Procedure and forum — Application must be made to a judge in open court; variation ordinarily by fresh action
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21 November 2005 |
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Court vacated interim injunction and discharged judicial review leave, finding AG a wrong party and immunity question premature for review.
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Constitutional Law — Immunity of Public Officials — Whether the Vice‑President enjoys criminal immunity under section 91(2) of the Constitution
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Administrative Law — Judicial Review — Appropriate party and remedy — DPP as proper party; Attorney General not proper defendant; constitutional interpretation vs. review
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21 November 2005 |
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Interim injunction and leave for judicial review were vacated because the Attorney General was the wrong party and judicial review was inappropriate.
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Constitutional Law — Immunity of Office — Whether section 91(2) affords criminal immunity to the Vice‑President — Interpretation versus review
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Constitutional/Administrative Law — Judicial Review — Proper respondent and forum for challenging prosecutorial decisions — Director of Public Prosecutions v Attorney General
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21 November 2005 |
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Murder suspects need not prove exceptional circumstances for pre‑trial bail; the State must show interests of justice.
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Constitutional Law — Bail — Burden of proof under s.42(2)(e) — State must show that the interests of justice require detention
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Criminal Procedure
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Murder suspects — Exceptional circumstances — Not required for pre‑conviction bail; applicable post‑conviction only
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Bail refusal — Requirement to state clear reasons — Lower courts must articulate grounds for refusal
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15 November 2005 |
| October 2005 |
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A predominantly labour dispute should generally be transferred to the Industrial Relations Court after case-by-case assessment.
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Jurisdiction — High Court v Industrial Relations Court — transfer of labour disputes; Labour Relations Act s64; case-by-case guidelines for transfer; ancillary non-labour claims do not preclude transfer.
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25 October 2005 |
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A statutory reverse‑onus presumption was held (majority) to violate the accused’s constitutional presumption of innocence and right to silence.
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Constitutional Law
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Criminal Procedure — Reverse onus presumption and burden of proof — Whether statutory presumption infringes presumption of innocence and right to remain silent
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Limitations on rights — Justification under s.44(2)–(3) — Requirement of evidence, rational connection, proportionality and non‑negation of essential content
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Criminal Law — Corruption offences — Proof of mens rea and legislative use of presumptions — Legitimate objective versus unacceptable reversal of onus
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20 October 2005 |
| September 2005 |
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Mortgagee sold charged property after Receiver’s appointment without fresh notice and negligently obtained an undervalue sale; plaintiff awarded K1.5m.
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Property Law — Mortgagee's Power of Sale — Duty to Act in Good Faith and Take Reasonable Precautions to Obtain Proper Price — Registered Land Act s 68
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1 September 2005 |
| August 2005 |
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31 August 2005 |
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A court may not add a party after default judgment merely to affect execution; a public registration document prima facie establishes ownership.
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Civil procedure — joinder of parties after default judgment — Order 15 joinder limited to cases necessary to adjudicate live disputes; Abuse of process in adding party to affect execution
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Execution law — levy on goods of judgment debtor; Interpleader — public registration document prima facie establishes ownership; Sheriff to release wrongly seized goods
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24 August 2005 |
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Defendant entitled to recover K8,969,943.40 by set-off for uncaptured payments despite plaintiff proving delivery of goods.
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Sale of goods — delivery and payment — disputed invoice and signature authenticity; restitution for money paid under mistake of fact or for failed consideration; set-off against plaintiff's claim; award of costs and refusal of interest
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18 August 2005 |
| July 2005 |
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Failure to file the mandatory interpleader affidavit is fatal; counsel-sworn hearsay affidavits are inadmissible.
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Civil procedure — Interpleader (Order 17) — mandatory claimant affidavit within 14 days — admissibility of affidavits (Order 41 r.5) — counsel-sworn hearsay expunged — failure to comply fatal — Sheriff authorized to sell seized goods
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31 July 2005 |
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An eviction judgment obtained without joining a person in actual possession can be set aside to allow them to defend their interest.
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Civil procedure — possession of land — non-joinder of person in actual possession — setting aside judgment and eviction obtained without hearing — Order 15 Rule 10 — right to be heard and procedural fairness
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17 July 2005 |
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An appeal does not stay execution and statutory delay for solicitor’s bills does not bar enforcing an order on taxation.
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Civil procedure — Garnishee proceedings — Order Nisi — Enforcement of order on taxation — Statutory one‑month delay for solicitor’s bill inapplicable — Appeal does not stay execution (Order 18 r 1(4))
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4 July 2005 |
| June 2005 |
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Bail revocation upheld where inordinate trial delay caused mainly by defence counsel, justifying detention in the interests of justice.
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Criminal procedure — Bail revocation — Inordinate delay in trial; accused's counsel conduct and duty to the court; right to trial within reasonable time (s.42(2)(f)(1)); Bail Guidelines Act — interests of justice
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26 June 2005 |
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Prosecution established bribery, misleading of investigators, and corporate liability for payments to public officers to evade tolls.
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Corrupt Practices Act — bribery and attempts to bribe public officers — misleading anti-corruption investigators — corporate criminal liability for payments to public officers — statutory effect of acceptance/solicitation without proof of actual forbearance
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15 June 2005 |
| May 2005 |
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Divorce granted where the respondent’s violent temper amounted to cruelty; applicant given custody, respondent visitation.
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Matrimonial law — Cruelty as ground for divorce — Standard of proof: balance of probabilities — Jurisdiction and non‑collusion — Custody and visitation orders
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31 May 2005 |
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Buyer entitled to refund of deposit with agreed 50% interest for seller’s prolonged non-delivery of contracted PABX.
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Sale of goods — sale by description and implied conditions; non-delivery and remedies — refund for total failure of consideration; frustration — defence rejected where supplier’s conduct shows procurement and promises; interest on deposit at agreed contractual rate; nominal damages where consequential loss not proved.
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30 May 2005 |
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Plaintiff failed to prove title to disputed land; trespass claim dismissed and injunction dissolved.
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Land dispute — proof of title — identification of locus in quo — admissibility and value of Lands Department witness evidence — failure to establish trespass — costs and dissolution of injunction
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26 May 2005 |
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Conversion to writ disallowed where fraud was alleged from the outset; application dismissed for inordinate delay and non‑prosecution.
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Civil procedure — Originating summons v writ — Order 28 r 8 RSC — Conversion to writ only where fraud arises during proceedings; fraud pleaded at outset precludes conversion — Delay and failure to prosecute — dismissal and costs.
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18 May 2005 |
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Court rejects securing child maintenance by speculative business interest and increases monthly maintenance to MK 75,000.
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Matrimonial law — variation of child maintenance — proposed security by transfer of business interest — insufficient evidence of ownership or income — best interests of the child under Constitution and CRC — maintenance orders are variable
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15 May 2005 |
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Time was not of the essence; respondent’s resale breached the sale contract — applicant entitled to refund with interest.
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Contract for sale of land — equitable interest of purchaser — vendor as trustee — time not of the essence unless expressly agreed — wrongful resale to third party — repudiatory breach — refund of purchase monies with interest — set-off unavailable where debts accrue in different transactions or against different legal persons
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12 May 2005 |
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Mandatory injunction refused where alleged dishonesty raised factual issues requiring trial and sponsorship withdrawal was permissible.
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Injunctions — mandatory injunctions are exceptional and require an unusually strong case; factual disputes (e.g., alleged dishonesty) cannot be decided on affidavit and require trial; withdrawal of sponsorship does not necessarily terminate a student’s place at an institution
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10 May 2005 |
| April 2005 |
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The applicant's unequal-pay and withheld-certificate claims were dismissed; respondent must assist in obtaining a replacement certificate.
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Employment law — equal remuneration for work of equal value — burden on employer to justify pay differences; employee redeployment/trainee status; loss of qualification certificate — duty to mitigate; appropriate relief when original certificate lost — assistance to obtain replacement; costs discretion in employment disputes
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30 April 2005 |
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Buyer’s claim for non-delivery fails where contract was conditional on USG availability and non-delivery was excused by force majeure.
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Contract law — conditional sale agreement — delivery contingent on third party (US Government) availability — force majeure and frustration invoked by administrative/market interference — unsuccessful variation/negotiation does not constitute binding rescission.
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26 April 2005 |
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Long delay and lack of sufficient cause barred defendant’s request; default judgment and damages reinstated.
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Civil procedure — Default judgment and assessment of damages — Setting aside or varying orders — Order 24 r 17 ‘sufficient cause’ — Consent order for directions — Delay and lack of diligence — Loss of records by fire and file reconstruction not automatically sufficient cause.
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19 April 2005 |
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Plaintiff awarded 15% collection costs where sworn affidavit showed part payment occurred after service and claim was duly pleaded.
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Civil procedure — debt recovery — entitlement to collection costs under Legal Practitioners (Scale and Minimum Charges) Rules — affidavit evidence on date of part payment preferred to unsworn oral submissions — pleading of collection costs.
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12 April 2005 |
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Petitioner must prove electoral irregularities affected the result; use of an official vehicle and unsigned forms did not vitiate the election.
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Electoral law — section 100 PPEA — timeliness of petition; no affidavit or prior MEC complaint required; Standard for nullifying elections — petitioner must prove irregularity affected result; Use of public/official resources — lawful use by incumbent Deputy Speaker post‑dissolution not proved to affect result; Verification of voters’ roll — insufficient evidence; Result-of-count forms and signatures — court should rely on primary evidence and not decide issues not pleaded.
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11 April 2005 |
| March 2005 |
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Plaintiff proved defendant-driver's negligence; collision on plaintiff's lane not conclusive, damages and costs awarded.
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Road traffic accident — Negligence — Collision on wrong side of road not conclusive — Burden on driver who departs from ordinary rule to justify departure — Credibility assessment of eyewitness testimony — Damages for repairs and hire costs
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31 March 2005 |
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Commissioner's compensation determinations must be enforced under the Workers' Compensation Act, not sued in the High Court.
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Workers' Compensation Act — enforcement of Commissioner's determinations — determinations enforceable as Chief Resident Magistrate orders — forum and procedure for enforcement and appeals; Section 63 — separate remedy for negligence (damages) distinct from enforcement of Commissioner's award
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31 March 2005 |
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Bank's revocation of irrevocable undertaking was grossly negligent; applicant awarded US$40,875 lost profits, costs halved.
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Contract law — irrevocable letters of undertaking — bank liability — revocation as breach — gross negligence/wilful misconduct — limitation clause inoperative — damages for loss of profits.
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29 March 2005 |
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Driver negligent approaching busy market; deceased not contributorily negligent; K99,000 awarded for loss of dependency.
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Road traffic — negligence — duty to approach market area at a speed permitting stopping; Credibility of eyewitness evidence; Contributory negligence — pedestrian standing on verge; Damages — loss of dependency, multiplicand/multiplier where income unproved; Late accident report and absence of criminal charge in civil assessment
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15 March 2005 |
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Claimant failed to prove ownership of a seized vehicle; court upheld registrar's dismissal on credibility grounds.
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Interpleader — ownership of seized goods — burden of proof; credibility of documentary evidence; delay in transferring title undermining ownership claim; appellate review of registrar's credibility findings
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12 March 2005 |
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Court upheld interlocutory mandatory and prohibitive injunctions protecting former president’s security rights pending judicial review.
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Administrative law — Interlocutory mandatory and prohibitive injunctions — legitimate expectation to be consulted on security personnel — police deployment: operational discretion versus statutory duty — judicial review — proper respondent (Inspector General of Police)
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3 March 2005 |
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Summary judgment refused where triable issues exist on whether defendant was legally liable as agent despite disclosed principals.
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Civil procedure — Summary judgment (Order 14) — Leave to defend where real or substantial question to be tried — Agency — whether defendant was agent at law or only commercial agent — effect of disclosed principal — prior course of dealing and implied liability.
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1 March 2005 |
| February 2005 |
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Court dismisses claim that plaintiff was misappointed as clerk not controller for lack of proof and wrong procedure.
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Employment law — procedural form of commencement (Originating Summons vs writ) — offer and acceptance — burden of proof for advertised post and misrepresentation — duress — probationary dismissal
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24 February 2005 |
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Decree nisi granted where spouse's violent conduct, willful neglect and secret administration of traditional medicine constituted legal cruelty.
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Matrimonial law — divorce for cruelty — traditional medicine administered without consent as cruelty — willful neglect to care as cruelty — no condonation or collusion; custody and property issues deferred to chambers
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21 February 2005 |
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A taxation review must be conducted by the taxing officer; the applicant failed to comply with Order 62 procedural requirements.
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Civil procedure — taxation of costs — Order 62 RSC (rules 33 and 34) — review of taxing officer’s decision — jurisdiction to review — procedural requirement to file and serve written objections.
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17 February 2005 |
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The respondent held liable for assault and battery by its employee; damages to be assessed by the Registrar.
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Tort — Assault and battery by security guard — Credibility findings — Employer liability for agent’s wrongful act — Assessment of damages — Evidentiary weight of visitor register and witness consistency.
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16 February 2005 |
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Acceptance by conduct and payment of agreed sums extinguished further assessment and revived claims, including interest and costs.
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Civil procedure — settlement by correspondence and conduct — acceptance by payment — whether out‑of‑court payment extinguishes further assessment of damages, interest and costs
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15 February 2005 |