Results.
72 judgments found.
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| December 2015 |
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Appellate court declines to disturb magistrate’s fair distribution of matrimonial property; appeal dismissed.
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Family law — Matrimonial property — Division of assets — Appeal by rehearing — Appellate interference with magistrate’s factual and discretionary distribution of matrimonial property.
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21 December 2015 |
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Property acquired during a customary marriage is family property; indirect contributions justify equitable distribution.
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Matrimonial property distribution — Customary marriage — Recognition of direct and indirect contributions (domestic labour and assistance in family enterprises) — Family estate not matrimonial property — Application of constitutional protections (s.22, s.24(1)).
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21 December 2015 |
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Distress without a written warrant can be lawful; plaintiff failed to prove illegal eviction, trespass or conversion.
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Property Law
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Distress for Rent — Requirement of Warrant of Distress and Notice — Authority of Sheriff and Legality of Distress
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Eviction — Writ of Possession and Repossession — Ratification by Acceptance of Keys
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Tort — Trespass and Conversion — Seizure of Tools of Trade/Passport/Cash — Burden of Proof and Failure to Call Witnesses
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17 December 2015 |
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Pursuing identical relief in trial and appellate courts is an abuse of process and can bar restoration of bail.
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Criminal Procedure — Bail — Restoration of bail after revocation — Change of circumstances and medical grounds
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Civil Procedure — Abuse of process — Concurrent applications/appeals in trial and appellate courts — Court will defer to appellate determination
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17 December 2015 |
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Unopposed affidavits established defendant's trespass; court granted originating summons and costs.
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Property Law — Trespass to Land — Whether unopposed affidavits in originating summons suffice to establish encroachment — Evidence and costs
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15 December 2015 |
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Assessment of damages for plaintiff bitten by defendant's dogs; court awarded K7,000,000 plus costs.
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Personal injury — assessment of damages — dog-bite injuries — pain and suffering; loss of amenities of life; disfigurement — use of comparative awards to fix quantum.
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14 December 2015 |
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Claimant’s long delay and refusal to pay revaluation barred specific performance; defendant validly rescinded sale and evicted.
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Contract — Sale of Land — Time of the Essence — Waiver, Notice and Laches
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Property Law — Registered Land — Vendor’s Lien and Overriding Interests — Effect of Registration on Seller’s Rights
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14 December 2015 |
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High Court dismissed IRC appeal for failing to raise any question of law or jurisdiction under section 65(2) LRA.
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Labour law — Appeal from Industrial Relations Court — s.65(2) Labour Relations Act — appeal limited to questions of law or jurisdiction — High Court will not re-appraise factual findings or admit new issues on appeal — pension fund transfer dispute.
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7 December 2015 |
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Interlocutory injunction refused where plaintiff failed to establish a good arguable claim of delayed disbursement.
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Civil Procedure — Interlocutory Injunction — American Cynamid / Malawi Mobile test — Requirement of a good arguable claim and balance of convenience
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Contract — Delay in Disbursement — Allegations must be supported by clear contractual evidence
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4 December 2015 |
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2 December 2015 |
| November 2015 |
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Delay warned in contract; no breach where time not of the essence, so damages claim dismissed.
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Contract Law — Performance — Time Not Of The Essence — Reasonable Time Where No Specified Time — Burden To Prove Unreasonable Delay
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29 November 2015 |
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Distinct partial incapacities may be aggregated under section 9 of the Workers Compensation Act; appeal allowed.
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Labour Law — Workers Compensation — Aggregation of multiple permanent partial incapacities under s9 of the Workers Compensation Act
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Civil Procedure — Appeal from Worker Compensation Commissioner — Commissioner not a required party and limited role once matter is appealed
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Evidence/Medical Assessment — Distinct injuries assessed by different specialists — Necessity to itemise Schedule injuries on medical forms
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26 November 2015 |
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A utility lawfully disconnecting for unpaid bills does not commit trespass or defamation absent proof of prior payment.
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Tort
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Trespass to Land — Entry and disconnection under statutory authority — Water Works Act s 15(d)
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Defamation — Justification (truth) as a defence to alleged reputational harm from service disconnection
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Civil Procedure — Pleading and Evidence — Negligence not entertained when unpleaded and no actionable damage proved
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26 November 2015 |
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Claimant failed to prove on balance of probabilities that beverage contamination occurred during manufacture; claim dismissed.
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Tort
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Product Liability — Manufacturer's duty to ultimate consumer where product reaches consumer sealed and unexamined
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Causation and Proof — Necessity to prove defect existed at manufacture or while under manufacturer's control; need to show bottle was sealed
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Civil Procedure — Joinder — Unclear justification for joining insurer where claimant lacks privity
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25 November 2015 |
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Decree nisi granted where petitioner proved respondent's serial adultery; jurisdiction established and costs awarded.
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Family law — Divorce — Jurisdiction (domicile) under s.2 Divorce Act — Adultery as ground for divorce — Undefended petition and unchallenged evidence — Decree nisi and costs awarded.
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16 November 2015 |
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Court corrected its omission and held the respondent entitled to compound interest at the contractual rate, dismissing the applicant's simple-interest request.
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Civil procedure — correction of clerical mistake (Order 20 rule 11) — Interest — contractual rate (2% above prime or maximum permitted) — simple versus compound interest — commercial transactions; compound interest recoverable where contract silent.
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2 November 2015 |
| October 2015 |
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30 October 2015 |
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Chief Justice recused for reasonable apprehension of bias and ceded certification power under inherent jurisdiction.
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Constitutional procedure — Certification of constitutional proceedings — Whether Chief Justice may certify after prior involvement in related inquiry
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Judicial bias — Recusal — Reasonable apprehension of bias where a judge previously chaired an inquiry into matters before the court
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Inherent jurisdiction — Delegation of statutory power — Ceding Chief Justice’s certification authority to another judge in the interests of justice
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28 October 2015 |
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An original court must formally determine necessity of referral before submitting Form 3 to the Chief Justice for certification.
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Constitutional Law — Referral Procedure — Whether original court must make formal determination before submitting Form 3 to Chief Justice for certification — Courts Act s 9(2),(3); Rules 3(1), 8(1)
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28 October 2015 |
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26 October 2015 |
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Appeal dismissed for vague, non‑compliant grounds of appeal; costs awarded to respondent.
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Civil Procedure — Appeals — Grounds of Appeal — Compliance with Order III r 2(2),(3),(4) — Vagueness, failure to state law/fact, excessive narrative — Power to strike out
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Civil Evidence — Appellate Review — Weight of evidence and witness credibility — Appellate restraint absent clear misdirection
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20 October 2015 |
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Registration of a vehicle creates a rebuttable presumption of ownership which may be displaced by uncontradicted evidence of prior sale.
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Tort — Motor vehicle negligence — Ownership presumption arising from registration and its rebuttal
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Evidence — Hearsay and admissibility — Reliance on uncontradicted employee testimony to prove prior sale
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Procedure — Third‑party notice — Effect of third parties’ failure to plead or appear
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13 October 2015 |
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In customary marriages matrimonial property may be "held jointly" despite registration in one spouse’s name and should be fairly divided under the Constitution.
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Family Law
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Matrimonial Property — Customary marriage — Fair disposal and joint holding under Constitution s 24(1)(b)(i)
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Maintenance and Property — Interaction of s 24(1)(b)(ii) maintenance obligations with property distribution
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7 October 2015 |
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Whether the respondent’s report amounted to laying a charge, giving rise to false imprisonment and defamation, but not malicious prosecution.
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False imprisonment — distinction between reporting a crime and laying a charge; Defamation — false statement, publication and reputational injury; Malicious prosecution — requirement of procuring/procurement, absence of malice and probable cause; Civil burden of proof — balance of probabilities.
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7 October 2015 |
| September 2015 |
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An unexplained two‑year delay defeats an application to appeal out of time under section 349(4).
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Criminal Procedure
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Appeals Out Of Time — Meaning Of "Good Cause" Under Section 349(4) — Requirements For Condonation
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Judicial Discretion — Refusal Of Extension Despite Delay — Inordinate Unexplained Delay
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29 September 2015 |
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Whether an exclusion clause signed by the consumer can bar negligence claims and the effect of the Consumer Protection Act.
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Contract Law — Exclusion Clauses — Incorporation by signature or notice — Effect on liability for negligence
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Consumer Protection — Statutory control of contract terms — Section 8(3) invalidating clauses that exempt supplier liability
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Civil Procedure — Appellate scope — Whether appellate court may apply unargued statute that is dispositive of an appeal
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9 September 2015 |
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Appeals to the High Court from the Industrial Relations Court are limited to questions of law or jurisdiction; factual appeals are not permitted.
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Labour Relations Act s65 — Appeals from Industrial Relations Court to High Court limited to questions of law or jurisdiction; findings of fact final; factual appeals dismissed.
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4 September 2015 |
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Court imposed 11 years’ imprisonment (consecutive) for massive money laundering and conspiracy despite plea, cooperation and restitution.
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Economic crimes — Money laundering and conspiracy to defraud — Large-scale public fund embezzlement — Weight of guilty plea, cooperation and restitution in mitigation — Consecutive versus concurrent sentences — Sentencing triad: culpability, offender circumstances, public interest.
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4 September 2015 |
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A consent order prescribing an agreed manner of tax payment binds the tax authority; a retrospective lien without statutory basis is unlawful.
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Civil procedure — Consent orders binding and estoppel; Tax law — creation and effect of tax liens (Taxation Act s.107A); Lien requires neglect/refusal to pay and statutory filing; Commissioner’s discretion to accept alternative payment arrangements.
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1 September 2015 |
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High Court may only hear Industrial Relations Court appeals on questions of law or jurisdiction; factual appeals are dismissed.
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Labour Relations Act s65(2) — appeals from Industrial Relations Court limited to questions of law or jurisdiction — factual and evidential findings by Industrial Relations Court final and binding — High Court may not re-examine internal disciplinary procedure or factual determinations.
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1 September 2015 |
| August 2015 |
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Immediate termination was unfair where the employer failed to rely on contractual quality reports and produced unreliable evidence.
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Contract
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Implied Terms — No general duty of good faith implied by law into all commercial contracts in this jurisdiction
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Termination — Unilateral termination for breach must be for a fundamental breach and exercised fairly — Evidence should include contractual monitoring records (weekly quality reports)
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30 August 2015 |
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High Court set aside magistrate’s estate distribution for lack of jurisdiction and appointed the Administrator General to administer the estate.
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Deceased estates — Jurisdiction of subordinate courts limited to 'small estates' (≤ K1,000,000) — Magistrate exceeded jurisdiction by distributing larger estate; jurisdiction can be raised on appeal; Administrator General appointed as receiver of letters of administration under s23.
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28 August 2015 |
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21 August 2015 |
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The appellant's theft-by-servant conviction was set aside for unsafe reliance on stock shortages and defective charging.
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Criminal law — theft by servant — stock shortages — circumstantial evidence — exclusive control and access — alternative explanations — illicit enrichment requirement — inadmissible hearsay — defective omnibus charging.
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20 August 2015 |
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Sentencing may proceed while confiscation/penalty applications are postponed, but confiscation (in rem) and pecuniary penalties (in personam) are treated differently and procedural safeguards apply.
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Money laundering — MLA: confiscation order is in rem against tainted property; pecuniary penalty/payment-in-lieu is in personam and punitive; Section 51(2) permits deferral of confiscation/penalty proceedings; sentencing and confiscation largely separate but procedural safeguards required when proceedings are postponed; disclosure order for bank cheque images.
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3 August 2015 |
| July 2015 |
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The respondent cannot unilaterally declare a strike illegal or withhold pay; only the IRC or High Court may do so.
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Labour Law
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Strike Procedures — Jurisdiction to declare strike illegal — Labour Relations Act ss44–46 — Industrial Relations Court/High Court determination
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Administrative Action — Ultra vires declaration and Wednesbury unreasonableness — Employer’s unilateral sanctioning of striking employees
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Disciplinary Procedure — Deduction/withholding of wages for absenteeism — Requirement for lawful basis and individual right to be heard (Employment Act s56)
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27 July 2015 |
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Applicant lacked sufficient interest to challenge the authority’s reopening of licence negotiations and appointment decisions.
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Administrative law — Judicial review — Standing/Sufficient interest to seek review — Applicant’s operational capacity versus licensed network operator
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Communications law — Licensing — Individual versus general licence — Voice telephony and requirement for individual licence under s 18(3)(a) of the Communications Act
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23 July 2015 |
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Court set aside a single‑judge stay of execution where appellant failed to show special circumstances or realistic prospects of success.
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Civil Procedure — Stay of Execution — Whether stay pending appeal should be granted where judgment debtor alleges insolvency and contested payments — Balance of convenience, special circumstances, prospects of success
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Court Powers — Single Member Decisions — Variation or discharge under Section 7(b) Supreme Court of Appeal Act
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Appeal Procedure — Enforcement pending appeal — Deference to trial court findings after full trial and heavier burden on appellant to obtain stay
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15 July 2015 |
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Court refused to strike out the defence, ordering defendants to amend inconsistent pleadings rather than dismissing them.
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Civil procedure — Order 18 r.19 (strike out/amend pleadings) — discretionary power sparingly exercised — triable issues (contributory negligence) preclude striking out; inconsistent/embarrassing pleadings to be amended; Order 2 r.1 curative power.
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13 July 2015 |
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A pre-judgment compromise ousts the appeal; the consent order must be entered though triable mortgage issues persist.
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Civil Procedure — Settlement and Consent Orders — Effect of pre-judgment compromise on appellate jurisdiction and duty to enter consent order
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Mortgage Law — Power of Sale — Whether mortgagee’s power had become exercisable; duties of good faith and obtaining fair market price
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Interim Relief — Injunction Pending Appeal — Test for grant where appellant lost at first instance: triable issues, adequacy of damages, and balance of convenience
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8 July 2015 |
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Magistrate court lacked jurisdiction over leased farm land; judgment set aside and land vested in appellant pending High Court proceedings.
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Civil procedure — Jurisdiction — Subordinate magistrate courts — Section 39(2)(a) Courts Act — Land comprising a leased farm — Proceedings void for lack of jurisdiction — Judgment set aside; interim vesting of land in appellant pending High Court determination.
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2 July 2015 |
| June 2015 |
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30 June 2015 |
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A two-month delay in seeking to set aside a default judgment was held inordinate; merits did not justify relief.
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Civil procedure — setting aside default judgment — promptness and reasonable time; merits of defence insufficient where delay is inordinate; two-month delay held inexcusable.
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15 June 2015 |
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15 June 2015 |
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Plaintiff’s tort claims for false imprisonment and malicious prosecution dismissed where police acted on reasonable suspicion and defendant only assisted investigations.
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Civil Law —
Tort
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False Imprisonment — Liability where private party provides information to police; distinction between mere assistance and initiating arrest
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Malicious Prosecution — Requirement of lack of reasonable and probable cause and proof of malice; effect of initial conviction on reasonable cause
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9 June 2015 |
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Plaintiffs failed to prove negligent overtaking; prior criminal conviction held inadmissible in the civil proceedings.
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Tort — Road Traffic — Negligent Overtaking and Causation — Proof on Balance of Probabilities
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Evidence — Previous Criminal Conviction in Civil Proceedings — Inadmissibility under Common Law (Hollingworth v Hewthorn)
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Procedure — Applicability of UK Civil Evidence Act 1968 / Rule 18(7A) — Not Part of Malawi's Received Law
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1 June 2015 |
| May 2015 |
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Commercial Division lacked jurisdiction; Limitation Act is a defence only; respondent failed to prove adverse possession.
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Civil Procedure
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Jurisdiction — Competence of Commercial Division to hear non‑commercial land disputes — Order 1 r.4(2) High Court (Commercial Division) Rules — s.108 Constitution
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Originating Summons — Unsuitable where there are substantial disputes of fact; parties should be ordered to proceed by writ
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Property Law — Adverse Possession — Whether an encroacher may sue to acquire title under Limitation Act — Limitation Act s.6; established requirement of factual possession and animus possidendi
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31 May 2015 |
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A missing trial record does not bar sentence re-hearing; death sentence inappropriate where material circumstances remain uncertain.
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Homicide sentence re-hearing — Missing or destroyed trial record — Court may proceed to re-sentence; s.260 CP&EC permits receiving external evidence to inform sentence — Cannot challenge conviction on re-hearing — Death sentence inappropriate where material circumstances uncertain — Youth, first offender status and time served as mitigating factors.
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31 May 2015 |
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Court varied property award to recognise non-financial contributions, upheld instalment payment for village house, and maintained children’s maintenance order.
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Family law — Divorce and ancillary orders — Fair distribution of matrimonial property — recognition of non-financial contributions; maintenance orders — assessment by reference to payer’s means and children’s best interests; instalment payments justified where payer lacks means; appellate review limited without fresh evidence.
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20 May 2015 |
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Statutory pre-trial detention limits do not strip courts of constitutional discretion to refuse bail in the interests of justice.
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Constitutional supremacy — pre-trial custody time limits (Sections 161G & 161I C.P. & E.C.) do not displace Section 42(2)(e) 'interests of justice' bail discretion; post-expiry bail applications remain discretionary; prior escape and lengthy evasion justify refusal as flight risk; State negligence in prosecuting may trigger conditional release.
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18 May 2015 |