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Citation
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Judgment date
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| February 2011 |
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Interim injunction refused: issue precluded by res judicata; consent order did not revive discharged injunction.
Civil procedure – interlocutory injunction – res judicata and abuse of process – effect of consent order withdrawing appeal and remitting matter – receivership and sale of charged assets.
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27 February 2011 |
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High Court may confirm a subordinate court sentence under s338 despite lack of formal referral; health mitigation needs medical evidence.
Criminal procedure — Confirmation of Subordinate Court sentences — s9(3) Criminal Procedure Code — High Court revisional powers under s338 where record 'otherwise comes to knowledge' — Mitigation for ill-health requires medical evidence — Sentencing: first offender mitigation versus aggravating permanent injury; deterrence in stabbing cases.
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24 February 2011 |
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Accused found unfit to plead due to schizophrenia; prosecution evidence warranted murder but accused detained during President's pleasure.
Criminal procedure – Fitness to plead and unfitness inquiries under ss.160–161 – Psychiatric report (schizophrenia) – Mbaye v The People followed – Where accused unfit to plead court must hear evidence but cannot convict or make special finding under s.167 – Detention during President’s pleasure.
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24 February 2011 |
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Failure to inquire into the accused's age and to sit as a Juvenile Court renders the proceedings a nullity; retrial ordered.
Juveniles Act s118 – duty to inquire into age; s2 – definitions of juvenile/child/young person; s63 – Subordinate Court must constitute as Juvenile Court; failure to inquire/constitute renders proceedings nullity; retrial before Juvenile Court required.
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24 February 2011 |
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Honest but excessive use of force in self-defence reduces a murder charge to manslaughter.
Criminal law – self-defence and retreat – excessive force honestly believed necessary reduces murder to manslaughter; provocation considered alternative.
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24 February 2011 |
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Whether an honestly held claim of right can excuse obtaining money by false pretences and related evidentiary and sentencing issues.
Criminal law — Bona fide claim of right — applies to honest claim to deal with another’s movable or immovable property; not confined to theft — Hearsay — admissible only to show statement was made, not to prove truth — Sentencing — public interest and appellate tests for interference (wrong in principle, manifestly excessive, exceptional circumstances).
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24 February 2011 |
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Model awarded unpaid fee; post‑termination use of her images lacked consent and was actionable, but damages were not proved.
Passing off/false endorsement — goodwill in a model’s name and image; termination of consent ends authority to use images; purchase/use of photographs does not negate need for model’s consent for new commercial uses; damages require proof of likely substantial damage; injunction and delivery up/destruction as remedies; counterclaim for business investment dismissed.
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23 February 2011 |
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Driving deliberately through a crowd was unlawful, grossly negligent and amounted to manslaughter.
Criminal law – Manslaughter (s.199 Penal Code) – unlawful act causing death – gross negligence/recklessness in driving – duty of care to pedestrians – causation – necessity/self‑defence considered and rejected.
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20 February 2011 |
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The State may enter a nolle prosequi to abate criminal proceedings when an accused dies before completion of the proceedings.
Criminal procedure — death of accused — competence of State to enter nolle prosequi — abatement of proceedings — Criminal Procedure Code ss.81 and 335 — Tembo v The People.
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17 February 2011 |
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Where no aggravating factors are proved, the minimum 15-year sentence for defilement is appropriate despite prevalence or deterrence arguments.
Criminal law – Defilement – Sentencing – Minimum statutory sentence (15 years) – Aggravating circumstances required for higher sentence – Deterrence and prevalence considerations – HIV window period complicating proof of transmission.
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16 February 2011 |
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Judicial review leave refused: statutory challenge route required, acts within statutory power, and multiplicity of proceedings condemned.
Judicial review – leave to apply (Order 53 r3) – filter for frivolous claims; Banking and Financial Services Act – possession (s81(2)(a)), powers on possession and termination of shareholding (s84A(g)); statutory challenge procedure (s84C) – mode of commencement; ultra vires and Wednesbury unreasonableness; multiplicity of actions and abuse of process.
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6 February 2011 |
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A subordinate court cannot grant bail to a detained person not brought before it; High Court or police may grant bail.
Criminal procedure – Bail – Section 123 CPC – Jurisdiction to grant bail to detained persons not brought before court – High Court’s inherent jurisdiction – Magistrate’s power to review and functus officio.
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1 February 2011 |