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Citation
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Judgment date
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| August 2018 |
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Appeal allowed: employee had accepted renewed contract reducing notice period, so no breach or duplicative awards.
Employment law – fixed-term renewals – document admissibility and deemed admission where no timely objection – variation of termination notice by mutual assent – extrinsic evidence rule – unjust enrichment and duplication of awards.
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10 August 2018 |
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Registered title and bona fide purchaser protection upheld; squatter claims and unproved fraud allegations failed.
Land law – registered Certificate of Title – bona fide purchaser for value without notice – squatters’ occupancy – requirement to plead and prove fraud with particularity – procedure for transfer and memorials on title – costs follow the event.
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10 August 2018 |
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Court of Appeal held trial judge erred by deciding substantive chieftaincy issues at interlocutory stage and granted interim injunction.
Interlocutory injunctions — American Cyanamid principles — court must not determine triable issues on affidavit evidence — preservation of status quo — pre-empting merits hearing — chieftaincy election dispute.
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10 August 2018 |
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Applicant’s request to extend time to file the Record was denied for inordinate delay and failure to obtain leave to appeal.
Civil procedure — Appeals — Computation of time includes weekends — Notice of Appeal filed late without leave — Court’s discretion under Order XIII r 3(3) to extend time requires sufficient reason — Inordinate delay and dilatory conduct justify refusal — Costs awarded.
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10 August 2018 |
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Whether the appellant manufactured the contaminated drink and whether it caused the respondent's illness.
Product liability – manufacturer’s duty of care to consumers – proof on balance of probabilities; Negligence – necessity of proving causation for damages; Medical evidence – requirement to link contamination to illness; Standard of proof in civil actions.
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10 August 2018 |
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Appeal dismissed for inordinate delay and failure to serve notice and file record and heads within prescribed time.
Appeal procedure – service of notice of appeal – Order X r.3(9) – filing record and heads – Order X r.6 – extension of time – non‑compliance – dismissal – commercial list expedited proceedings.
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7 August 2018 |
| July 2018 |
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Retirement-related claims from 2010 are not time-barred; earlier claims, including 2002 eviction, are statute-barred.
Limitation of actions – cause of action – accrual on early retirement (18 Feb 2010) – Section 2(1)(a) Limitation Act – negotiations do not stop limitation absent agreement or representation – quantification of pension, terminal benefits, leave and repatriation.
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31 July 2018 |
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Whether the Court of Appeal may grant an injunction at first instance to preserve the status quo pending appeal.
Court of Appeal – jurisdiction to grant injunctions at first instance – interplay of Order 59 Rule 10(9) and Rule 14(4) – Order 27 (High Court Rules) pertains to High Court preservation powers only – special circumstances where judgment executed and stay application effectively frustrated – limited injunctive preservation of shares pending appeal.
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27 July 2018 |
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Reporting suspected theft to police based on CCTV without malice does not attract false imprisonment liability.
False imprisonment – reasonable and probable cause; reporting suspected crime to police; no liability absent malice; CCTV identification; detention due to failure to meet bail.
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24 July 2018 |
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Newspaper advertisement did not suffice for Section 13 notice; registered-post service and three‑month right to be heard are mandatory.
Lands Act s.13 — notice of intention to re-enter — service by registered post to last known address required; substituted service by newspaper advertisement improper; failure to afford three-month opportunity to make representations renders repossession invalid.
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24 July 2018 |
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Failure to serve notice and memorandum within fourteen days may be curable; late service can be regularized if no prejudice results.
Court of Appeal Rules (Order X r3(5),(9)) – service and filing periods for notice and memorandum of appeal – interpretation of time limits – late service – curable irregularity – leave to serve out of time – prejudice and procedural technicalities (Article 118(2)(e)).
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20 July 2018 |
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Contentious paternity and Will validity require open trial; Local Court succession jurisdiction limited to estates ≤K50,000; matter remitted for trial.
Succession — intestacy versus validity of Will — probate and evidencing a Will; Local Court jurisdiction in succession matters (K50,000 limit); originating summons/affidavit inadequate where factual disputes require open trial; admissibility/use of affidavits sworn by non‑parties; administration and revocation of grants; mesne profits and possession claims.
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18 July 2018 |
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Redundancies under written contracts are governed by the contract; lack of consultation is not automatically unfair.
Employment law — Redundancy under written contracts — Contractual redundancy clause governs process; statutory consultation applies only if incorporated or implied — Absence of consultation not automatically unfair — Trial court factual findings and credibility assessments reviewed with deference.
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13 July 2018 |
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Appeal to set aside part of arbitral award dismissed: tribunal properly refused damages for lack of evidence; no procedural or public-policy breach.
Arbitration — setting aside award — section 17(2)(a)(iv) and 17(2)(b)(ii) Arbitration Act — procedural impropriety — admissibility of evidence — Article 19 Model Law — public policy — high threshold (gross injustice) — section 15(c) Arbitration Act — costs order.
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4 July 2018 |
| June 2018 |
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Failure to disclose material facts in an ex parte injunction application justified its discharge; no fresh injunction was granted.
Civil procedure – interim injunctions – ex parte applications – duty of full and frank disclosure of material facts; injunctions – application of American Cyanamid principles; land law – road reserves and reallocation; setting aside ex parte injunctions; costs.
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29 June 2018 |
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Conviction based on weak circumstantial links and confession-related evidence was unsafe; appeal allowed and appellant released.
Criminal law – circumstantial evidence: sufficiency and nexus to offence; confession evidence and trial-within-a-trial; evidentiary value of leading police; identification and recovery of stolen property.
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27 June 2018 |
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An oral agreement fixing a 26-week use of a title deed was breached; nominal damages awarded for unproven actual loss.
Contract law – oral agreement – certificate of title given as security – agreed duration (26 weeks) – breach by holding over – failure to prove actual loss – nominal damages awarded (K5,000) – interest and costs.
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27 June 2018 |
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Where a contract period was proved but actual loss was not, only nominal damages were awarded for the breach.
Contract law – oral agreement – meeting of minds as to duration – breach for retention of security beyond agreed period – damages: failure to prove actual loss entitles to nominal damages; measure of damages; appellate review of factual findings.
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27 June 2018 |
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Court upheld incest conviction despite an unproduced medical report, finding the complainant’s credible uncorroborated evidence sufficient.
Criminal law – incest – reliance on unproduced medical report – cautionary rule in sexual offences where complainant is over 14 – conviction on uncorroborated but credible testimony – evidence of arrest not required.
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26 June 2018 |
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Child witness voire dire must meet statutory requirements; defective voire dire and lack of corroboration quashed the conviction.
Criminal law – Evidence of child witnesses – Voire dire under section 122 Juveniles (Amendment) Act – requirement to record questions, answers and findings – defective voire dire requires discounting child evidence; corroboration required; sentence above statutory maximum; misdirection.
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26 June 2018 |
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High Court retains jurisdiction to hear trespass and nuisance claims where respondents lack mining or non-mining rights.
Mining Appeals Tribunal – scope of jurisdiction – Sections 96–98, 100 Mines and Minerals Development Act – original versus appellate jurisdiction – statutory interpretation – trespass and nuisance claims against persons without mining rights – mode of commencement and jurisdiction.
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12 June 2018 |
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Failure to obtain the trial transcript can justify extension of time to file the record of appeal under Order XIII r.3(3).
Civil procedure — Court of Appeal Rules Order XIII r.3(3) — extension of time to file Record of Appeal and Heads of Argument — failure to obtain trial transcript as sufficient reason — discretion to extend time — matters raising novel issues.
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8 June 2018 |
| May 2018 |
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A written exculpatory statement can constitute a disciplinary hearing; summary dismissal was not wrongful under the disciplinary code.
Employment law – Disciplinary proceedings – "Hearing" includes written exculpatory submissions – Opportunity to be heard either orally or in writing – Summary dismissal permissible for specified offences under Disciplinary Code (Clause 4.7.1(a)) – Reliance on Sitali v Central Board of Health and Mumba v Telecel.
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24 May 2018 |
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A written exculpatory response constitutes a disciplinary 'hearing'; summary dismissal was lawful, so wrongful-dismissal award set aside.
Disciplinary proceedings – Meaning of 'hearing' – written exculpatory statement suffices; summary dismissal – Clause 4.7.1(a); procedural fairness – Clause 2.6; reliance on Sitali v Central Board of Health and Mumba v Telecel.
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24 May 2018 |
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Appeal partly allowed: K366,769,847 awarded based on delivery notes; foreign-currency claim dismissed for lack of locus and proof.
Evidence — proof of delivery — delivery notes and referee's report as evidential matching of invoices; Appeal — interference with trial findings only for perversity or misapprehension; Cross-examination — limits of hypothetical questions as evidential admissions; Credibility — caution against one-sided demeanour findings; Agency — agent's locus standi to sue on principal's contract; Interest and costs.
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24 May 2018 |
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Challenges to a Commissioner’s re-entry must be appealed to the Lands Tribunal under Section 13(3); High Court lacked jurisdiction.
Lands Act s.13(3) — Challenge to Commissioner's re-entry — Appeal to Lands Tribunal for rectification — Lands Tribunal power limited to rectification/recommendation; cancellation of title reserved to High Court via prescribed procedure — Jurisdictional effect of procedural non-compliance.
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16 May 2018 |
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Appeal allowed where dying statement failed to identify the appellants and alibi and circumstantial evidence were insufficient.
Criminal law – murder; dying declarations/res gestae and identification; relatives as suspect witnesses; alibi — prosecution duty to disprove; circumstantial evidence must exclude reasonable doubt; joint liability (s.22 Penal Code).
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15 May 2018 |
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Arbitral award upheld: arbitrator acted within jurisdiction and liquidated damages clause did not offend public policy.
Arbitration — setting aside award — scope of arbitrator's jurisdiction — court may consult award, pleadings and affidavits where submission not exhibited — implied contractual terms — liquidated damages vs penalty — public policy (gross injustice) threshold.
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2 May 2018 |
| April 2018 |
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Court upholds malicious prosecution finding and general damages, allows vehicle damage claims to be assessed by Deputy Registrar.}
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27 April 2018 |
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Whether administrators with unregistered letters have sufficient interest to be joined to litigation over estate land and whether the court should grant relief under section 6.
Lands and Deeds Registry Act s5(3), s6 – effect of non‑registration of probate on land rights; Court’s discretion to extend registration time; Joinder – administrators’ locus standi to defend estate land; High Court Rules (Order 14/30) – interest sufficient for joinder; avoidance of multiplicity of actions.
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27 April 2018 |
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Under s.15, a custody order depends on an existing maintenance order, so the Court lacked jurisdiction and dismissed the appeal.
Family law — Affiliation and Maintenance Act s.15 — custody orders conditional on existing maintenance orders; statutory interpretation — literal rule; jurisdiction to grant custody; domicile/citizenship issues rendered academic.
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27 April 2018 |
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Whether documentary and oral evidence sufficed to prove stock quantity/value after a landlord’s re‑entry and the proper allocation of costs.
Landlord and Tenant (Business Premises) Act – re‑entry and inventory – evidence and burden of proof – sufficiency of invoices and sales schedules to prove stock balance – credibility and assessment of inventory – costs where parties partially succeed.
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25 April 2018 |
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Appeal dismissed for want of prosecution due to inordinate, inexcusable delay and contumelious disregard of procedural rules.
Appeal — dismissal for want of prosecution — Order X r7 Court of Appeal Rules — contumelious/default — inordinate and inexcusable delay — exercise of discretion — costs.
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10 April 2018 |
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Court ordered K50,000 security for costs on appeal, refusing to require payment as a condition precedent.
Security for costs – Court of Appeal discretion under Order 10 Rule 8 – "past costs" construed as costs relating to appeal (not necessarily trial costs) – merits to be examined only where high probability of success or failure – payment need not be condition precedent.
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4 April 2018 |
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Appeal allowed: subordinate court lacked jurisdiction over an estate exceeding statutory value threshold; matter should have been referred to High Court.
Succession law – Jurisdiction under Intestate Succession Act s43 – Value thresholds for subordinate courts – Judicial notice of estate value – Referral to High Court under s44 – Setting aside judgments for lack of jurisdiction.
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1 April 2018 |
| March 2018 |
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Appellate court upheld aggravated robbery conviction despite noting a harmless misdirection on burden of proof.
Criminal law – Aggravated robbery – Evaluation of evidence and credibility – Section 169 Criminal Procedure Code – Burden of proof – Recent possession of stolen property – Alternative lesser offence (theft/receiving) consideration.
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29 March 2018 |
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Whether identification and the victim's age were sufficiently proved to sustain a defilement conviction and sentence.
Criminal law - defilement – identification evidence and corroboration by circumstantial and medical evidence – proof of victim's age (ocular observation and parental testimony) – burden of proof – sentencing; aggravating brutality justifying sentence above mandatory minimum.
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29 March 2018 |
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Court of Appeal lacks jurisdiction to grant bail pending appeal absent an appeal pending before it.
Criminal procedure — Bail pending appeal — Jurisdiction of Court of Appeal under s.18(1) Court of Appeal Act — Requirement of an appeal pending before the Court of Appeal — Prior High Court refusal — Premature/incompetent application.
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28 March 2018 |
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Lease with option to purchase was terminable by statutory notice; possession, mesne profits, rent arrears, and reimbursement of validated improvements were ordered.
Landlord and Tenant (Business Premises) Act – statutory notice to quit supersedes conflicting lease term; Tenancy termination – notice expiry determines end of tenancy; Mesne profits – recoverable at open market rental for period of unlawful possession; Rent arrears – credit for payment into court; Reimbursement for improvements – payable for validated works up to expiry of notice, interest from refusal to sell per Judgments Act; Proof of unlawful subletting – invoices and conduct can establish liability; Company law – person aged eighteen validly a director.
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26 March 2018 |
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Buyer entitled to reject non-merchantable bus despite signed declaration; seller awarded partial counter-claim and set-off ordered.
Sale of goods — merchantable quality and fitness for purpose — latent defects present at delivery — admissibility of extrinsic evidence to show written document not entire agreement — buyer's right to reject — passing of risk under s.20 — partial allowance of seller's counter-claim and set-off against buyer's refund — interest and currency ordering.
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26 March 2018 |
| February 2018 |
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A Notice of Motion lacking required grounds and an undated jurat is incompetent and must be dismissed; costs follow.
Civil procedure – Competency of Notice of Motion – Requirement to state statutory basis, grounds and order sought – Form III substantial conformity – Affidavit jurat must state date and place (Commissioner for Oaths Act s.6) – Defective documents incurable and not cured by argument.
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27 February 2018 |
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DPP’s nolle prosequi is unassailable; conviction upheld on wound plus intent, but five-year sentence reduced to 12 months.
Criminal law – DPP’s power to enter nolle prosequi – prosecution on a different charge than arrest – duplicity – interested witnesses and corroboration – meaning of "wound" and "grievous harm" under Penal Code s.4 and s.224(a) – self-defence/force in arrest (ss.17,18) – sentence appellate interference.
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27 February 2018 |
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Applicants' late objections to tribunal composition and audit reliance were waived; arbitral award upheld and appeal dismissed.
Arbitration — jurisdiction and Kompetenz‑Kompetenz — waiver/estoppel for failure to timely object — articles of association are contractual (not statutory) — arbitrator may rely on consensual expert audit — section 17 Arbitration Act: scope and limits of setting aside award.
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27 February 2018 |
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Conviction for defilement quashed where trial court failed to assess statutory defence of reasonable belief as to age.
Criminal law — Defilement (s.138(1) Penal Code) — Proviso statutory defence — "reasonable cause to believe" victim 16 years or over — dual inquiry: actual belief and objective reasonableness — ocular appearance alone insufficient — burden on prosecution to disprove defence beyond reasonable doubt.
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22 February 2018 |
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The appellant's failure to deduce title precluded a valid notice to complete; specific performance was upheld.
Contract of sale of land – existence of contract from offer and acceptance and contemporaneous documents – Vendor’s duty to deduce title before completion – Notice to complete and whether time is of the essence – Withholding purchase money lawful where title not deduced – Specific performance appropriate; rescission not justified.
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21 February 2018 |
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Whether nullification and barring of exam results were intra vires and procedurally fair.
Administrative law — judicial review — scope limited to process and legality, not merits; natural justice — right to be heard; Wednesbury/irrationality review; ultra vires and 'reasonably incidental' powers to impose penalties in conduct of examinations.
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16 February 2018 |
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Extension to file Record of Appeal granted where application was made within the 21‑day statutory grace period.
Civil procedure — extension of time to file Record of Appeal — Court of Appeal Rules: Order X r 6; Order XIII r 3(2) and r 3(3) — defective form/not specifying sub‑rule curable — delayed Notice of Address not fatal — costs in the cause.
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16 February 2018 |
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Court allowed post-judgment joinder of similarly affected former employees, finding locus, interest and no prejudice to appellant.
Civil procedure — Joinder at appeal stage — Court’s discretion to join parties post-judgment; locus standi; sufficient interest; lack of awareness; applicability of s.85(6) Industrial and Labour Relations Act; limitation provisions inapplicable to joinder.
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16 February 2018 |
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Unsubstantiated claims of prior representation or friendship do not, by themselves, require a judge's recusal.
Judicial recusal — apparent bias — Judicial (Code of Conduct) Act s6 — real possibility/perception test — prior representation or friendship not disqualifying without evidence — forum shopping and baseless allegations may warrant sanction.
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15 February 2018 |
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Unsubstantiated claims of past representation or friendship do not establish a reasonable apprehension of judicial bias; appeal dismissed.
Judicial recusal; apparent bias; Judicial (Code of Conduct) Act s6; "real possibility" test of bias; prior representation or social acquaintance insufficient without evidence; forum shopping; contempt for baseless allegations.
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15 February 2018 |