Results.
49 judgments found.
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| June 2021 |
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A consent order did not bar recovery of costs to the claimants; insurer’s policy limit does not relieve the insured of excess costs.
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Insurance law — consent order — policy limit — costs — taxation of costs; distinction between insurer’s obligation and insured’s personal liability; Kabotolo precedent.
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28 June 2021 |
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Unpleaded nerve injury and unparticularized special damages rejected; court separately assessed non-pecuniary and earning-capacity damages, awarding K7.5m.
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Personal injury — assessment of damages; new/unpleaded injury inadmissible at assessment without prior notice or medical support; unparticularized special damages not awarded; non-pecuniary heads to be separated; loss of earning capacity — use of minimum wage as multiplicand and court discretion on multiplier when age/earnings unverified.
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24 June 2021 |
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Court found an oral partnership and dissolved it from 1 January 2009 but dismissed accounting and damages claims for lack of audited proof.
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Partnership law — existence of partnership despite absence of written agreement — contribution by labour and profit-sharing as indicia of partnership; Partnership act — dissolution by notice and cessation of joint trading; Civil proof — need for audited accounts/forensic tracing to establish alleged transfers, loans and loss.
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24 June 2021 |
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24 June 2021 |
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Whether hearsay alone can establish that the respondent defamed and maliciously harmed the applicant's employment prospects.
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Defamation — requirement of proof of publication to third parties — hearsay insufficient to establish defamatory or malicious false statements — failure to call primary witnesses defeats claim.
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24 June 2021 |
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Death sentence set aside due to youth and untreated epilepsy; substituted sentence of time served with conditional medical follow-up.
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Sentencing — Death sentence rehearing — Mental illness (grand mal epilepsy) as mitigation — Lack of neurological/psychiatric assessment — First offender and youth — Substituted sentence of time served and conditional release.
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24 June 2021 |
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Conviction quashed where unsworn child evidence lacked adequate corroboration and the defence version might reasonably be true.
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Criminal law — defilement of a minor; unsworn child evidence requiring corroboration; medical evidence confirms assault but not perpetrator; credibility and timing of disclosure; appellate review; conviction unsafe and quashed.
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24 June 2021 |
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Whether a bank’s application of a deposit to a defaulted loan violated Pension Act s73(1)(c)’s protection of pension benefits.
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Banking and loans — application of account deposit to arrears and fees — appellate rehearing and powers under Courts Act s22 — Pension Act s73(1)(c) — protection of pension benefits from attachment — remittal for additional evidence.
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23 June 2021 |
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Whether striking out a defence at mandatory mediation was a proportionate sanction and whether mediation confidentiality was breached.
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Civil procedure — mandatory mediation — Order 13 r.6 CPR (2017) — striking out defence for non-attendance — proportionality of sanction; mediation confidentiality — Order 13 r.7 — use of mediation materials in substantive orders; case management discretion — appellate review; restoration and costs as remedies.
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23 June 2021 |
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Whether the Ombudsman may hear unfair dismissal claims where court remedies exist and whether its compensation awards exceeded statutory limits.
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Administrative law — Ombudsman jurisdiction under section 123 — exclusion where court remedies reasonably available; Employment law — compensation for unfair dismissal — awards must follow Employment Act standards, avoid double recovery; Judicial review — Wednesbury unreasonableness and statutory conformity.
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23 June 2021 |
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The Ombudsman lacked jurisdiction over a delayed unfair‑dismissal claim and awarded excessive, Wednesbury‑unreasonable compensation.
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Constitutional/judicial review — Ombudsman jurisdiction — section 123 Constitution — exclusion where court remedies available; Labour law — unfair dismissal — Employment Act governs compensation — awards must be just and equitable; Administrative law — Wednesbury unreasonableness — excessive compensation; Limitation and separation of functions between courts and Ombudsman.
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23 June 2021 |
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Ombudsman lacked jurisdiction over an old unfair dismissal claim and its compensation awards were excessive and unlawful.
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Ombudsman jurisdiction — section 123 Constitution — availability of court remedies — unfair dismissal — Employment Act s63 compensation — Wednesbury unreasonableness — administrative judicial review.
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23 June 2021 |
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Appeal dismissed with costs for failure to comply with Practice Direction and to prosecute the appeal.
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Civil procedure — non-compliance with Practice Direction No.1 of 2010 — failure to file skeleton argument/chronology/list of authorities — dismissal for failure to prosecute — injunction proceedings.
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22 June 2021 |
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An appeal may be dismissed with costs where appellants fail to comply with practice directions and to prosecute the appeal.
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Civil procedure — Practice Direction No. 1 of 2010 — Failure to comply with pre-hearing protocols — Failure to prosecute appeal — Dismissal for want of prosecution and costs; land law — permanent injunction protecting possession and quiet enjoyment.
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22 June 2021 |
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Claimant awarded K3,500,000 for pain, suffering and loss of amenities after false positive HIV diagnosis and ARV treatment.
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Medical negligence — False positive HIV test — Wrongful administration of ARVs — Assessment of damages for pain and suffering, loss of amenities and disfigurement — Default judgment on liability.
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21 June 2021 |
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21 June 2021 |
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Rape conviction quashed where prosecution failed to prove lack of consent or adduce corroborative evidence.
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Criminal law — Rape — Proof of lack of consent — Need for corroborative evidence where consent is disputed — Medical evidence inconclusive — Conviction quashed for insufficient evidence.
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21 June 2021 |
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Application to stay assessment of damages was refused: default judgment against the 2nd defendant stands and no special circumstances merited a stay.
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Civil procedure — Stay of proceedings pending appeal — Inherent jurisdiction to stay proceedings — Default judgment — Assessment of damages may proceed despite pending appeal against other defendants — Applicant must show special circumstances or irreparable harm not compensable by damages.
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21 June 2021 |
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Whether newspaper words amounted to defamatory libel and whether fair comment or justification defeated the claim.
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Defamation (libel) — publication and reference — ordinary meaning test — whether words lower claimant in estimation of right-thinking members of society — defences of fair comment and justification — failure to prove defamation on balance of probabilities — costs for failure to file submissions.
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18 June 2021 |
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17 June 2021 |
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Discharge for nude photos substantively justified but quashed due to serious procedural unfairness in disciplinary process.
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Police discipline — conduct prejudicial to good order — nude photographs — higher standard for uniformed officers; Administrative law — procedural fairness — inadequate notice; natural justice; functus officio; unlawful internal interference; Appeal — leave to appeal out of time.
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15 June 2021 |
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15 June 2021 |
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Failure to prove that the employer instigated arrests; acquittal alone does not establish false imprisonment.
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False imprisonment — employer report of missing goods — notification to police vs. laying a charge — police independent investigation — acquittal not determinative of civil liability — evidential burden to prove instigation of arrest.
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15 June 2021 |
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A trial court need not give reasons when finding the applicant has a case to answer.
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Criminal procedure — Section 254 CP&E Code — finding of a case to answer — no statutory duty to give reasons when directing accused to make defence — review jurisdiction and non-interference with ongoing subordinate court proceedings.
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15 June 2021 |
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Leave granted to seek judicial review of COVID-related restrictions; injunction dismissed; police dismissal overturned for procedural unfairness.
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Judicial review — Public health measures — Partial lockdown and restrictions on trade and movement — Amenability to judicial review — Lawfulness and procedural fairness; Interlocutory injunction — requirement for separate application and supporting affidavit; Administrative law — disciplinary proceedings — procedural fairness, inadequate notice, internal interference, functus officio; Ultra vires and parliamentary oversight — Public Health Amendment Rules.
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15 June 2021 |
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Leave for judicial review refused where no recorded hospital decision, no medical evidence under s.243, and alternative remedies available.
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Administrative law — leave to apply for judicial review — necessity of a recorded public decision; Abortion law — section 243 Penal Code exception for operations to preserve mother's life; Alternative remedies — criminal prosecution and child maintenance bars to review; Wednesbury unreasonableness; Onus on applicant to produce medical evidence.
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15 June 2021 |
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Leave for judicial review refused where no hospital decision to deny termination was recorded and alternative remedies existed.
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Judicial review — leave to apply — requirement of a justiciable public decision; Penal Code s243 exception — onus to show risk to mother's life/health; locus standi; alternative remedies (criminal prosecution, child maintenance); abuse of process.
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15 June 2021 |
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Section 46 requires the Commissioner to refer questions of law to the High Court on request; refusal is irrational, mandamus granted.
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Workers Compensation Act s46 — mandatory duty to state a special case to the High Court on request; judicial review — Wednesbury unreasonableness; mandamus to compel statutory duty; distinction between case stated and appeal procedures.
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15 June 2021 |
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Adoption authorized after court found statutory requirements, valid consents, and best interests of the child satisfied.
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Adoption law — Adoption of Children Act requirements — child’s age and residency — petitioners’ age and marital status — consent of persons with parental interest — Guardian ad Litem recommendation — best interests of the child — prohibition on payment for adoption.
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14 June 2021 |
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Subordinate court may distribute matrimonial property as ancillary to dissolving a customary marriage; distribution depends on intention and contributions.
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Family law — Dissolution of customary marriage — Ancillary power of subordinate court to distribute matrimonial property notwithstanding statutory monetary limits — Distribution based on intention and contribution (Sikwese v Banda) — Pre-Act marriages and inapplicability of section 74 — Credibility findings and evidential assessment.
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14 June 2021 |
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Court confirmed 15-month sentence for defilement, balancing accused's youth and existence of a relationship with the victim.
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Criminal law — Defilement — Confirmation of sentence on review — Sentence adequacy where accused aged 18 and victim aged 13 — evidence of relationship and medical report — inconsistencies in victim's statements.
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14 June 2021 |
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A review court enhanced an unduly lenient 10-year defilement sentence to 40 years due to victim's age, STI infection, and breach of trust.
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Criminal law — Defilement (s.138(1) Penal Code) — Sentencing — Starting point 14 years — Aggravating factors: victim's age, STI infection, breach of trust — Unduly lenient sentence enhanced on review to 40 years IHL.
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14 June 2021 |
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A defilement sentence was increased on review due to abuse of trust, premeditation, and need for stronger deterrence.
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Criminal law — Defilement (s.138(1) Penal Code) — Sentencing on review — Starting point increased from 14 to 20 years — Aggravating factors: abuse of trust, mature offender, premeditation — Enhancement of sentence to 42 years imprisonment.
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14 June 2021 |
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Whether a two-year burglary sentence was manifestly inadequate and required enhancement on confirmation.
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Criminal law — Burglary/housebreaking — sentencing — confirmation review — adequacy of two-year term — sentencing guidelines starting point six years — sentence confirmed due to time already served.
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14 June 2021 |
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Costs assessed on the standard basis: counsel’s K40,000 hourly rate allowed, several claimed hours reduced as disproportionate.
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Civil procedure — Assessment of costs — Standard basis where order silent — Proportionality and reasonableness of hours — Counsel hourly rate — Reduction for non-compliance with assessment bundle rule — Messengerial attendances not taxable at counsel rates — 60% allowance for general care and conduct in straightforward personal injury matter.
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14 June 2021 |
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10 June 2021 |
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9 June 2021 |
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Court validated an unratified pre-incorporation land transfer under Companies Act s44, making the company a proper party.
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Companies Act s44 — pre-incorporation contracts — requirement and form of ratification — validation by court of unratified pre-incorporation land transfer — capacity to sue — proper party to proceedings.
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9 June 2021 |
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9 June 2021 |
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8 June 2021 |
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Application for rehearing and to set aside judgment dismissed; High Court functus officio after Supreme Court appeal.
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Civil procedure — application for rehearing and to set aside judgment entered in absence of a party — functus officio — finality of judgment after appellate determination; High Court cannot reopen matter adjudicated on appeal.
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8 June 2021 |
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Court stayed enforcement of procurement-review remedies pending judicial review due to arguable illegality, possible bias, and reputational risk.
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Administrative law — stay of execution pending judicial review; procurement law — Review Committee remedies; duty of tribunal to give reasons; undeclared interest and apprehension of bias; serious issue to be tried, irreparable harm, balance of convenience.
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8 June 2021 |
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7 June 2021 |
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Court enhanced sentence to 40 years for defilement of a nine‑year‑old by an HIV‑positive, premeditating offender.
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Criminal law — Defilement — Sentencing on confirmation — Whether ten years was unduly lenient for defilement of a nine‑year‑old — Aggravating factors: victim age, HIV‑positive offender, premeditation, threats and bribery — Movement from 14‑year to higher baseline starting point.
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7 June 2021 |
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Appeal dismissed where appellants failed to comply with pre-hearing protocols, indicating abandonment and wasting court time.
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Civil procedure — Compliance with Practice Direction No.1 of 2010 — Failure to file skeleton arguments, chronology and authorities — Inference of abandonment — Dismissal of appeal for failure to prosecute — Costs.
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6 June 2021 |
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Whether jointly-acquired matrimonial land vests in the surviving spouse by survivorship or forms part of an intestate estate.
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Constitutional property rights — section 24(1)(b)(i),(ii) — interpretation of “property held jointly during marriage” — matrimonial property and survivorship — Deceased Estates (Wills and Inheritance) Protection Act — Marriage, Divorce and Family Relations Act — inter vivos dispositions vs intestacy — survivor’s proprietary rights — need for letters of administration.
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6 June 2021 |
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Jointly acquired matrimonial property vested in the surviving spouse by survivorship; no administration necessary; section 24 mandates broad fair-disposition principles.
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Constitutional and family property law — Interpretation of section 24 (property rights of women) — Meaning of "property held jointly" — Survivorship of jointly held property — Scope of Deceased Estates (Wills and Inheritance) Protection Act and Marriage, Divorce and Family Relations Act — Administration of estates and requirement for letters of administration.
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6 June 2021 |
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Assessment of damages for fractured tibia: non-pecuniary award and modest special damages for reports.
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Personal injury — assessment of damages — fracture of tibia with permanent scarring — pain and suffering, loss of amenities, disfigurement — special damages must be proved; reasonable compensation where proof lacking — reliance on comparable awards.
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4 June 2021 |
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Court quashed unlawful Electoral Commission appointments for breaching statutory nomination limits and ordered prompt re‑nomination.
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Electoral law — Nomination and appointment of Electoral Commission commissioners — Interpretation and enforcement of section 4 of the Electoral Commission (Amendment) Act — Validity of appointments where a party exceeds statutory nominee limit — Locus standi of political party to challenge appointments — Waiver and acquiescence not applicable to constitutional/political rights.
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2 June 2021 |