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Citation
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Judgment date
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| November 2021 |
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Court permitted payment of admitted judgment debt in higher monthly instalments, finding the defendant’s proposed plan unfair and granting leave to appeal.
Civil procedure — Payment of judgment debt in instalments — Instalment orders must fairly balance debtor’s affordability and creditor’s right to prompt satisfaction; default clause enforceable
Evidence — Affidavit in reply — No leave required to file an affidavit in reply (distinct from further affidavits). Interest and costs awarded; leave to appeal granted
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30 November 2021 |
| September 2021 |
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Loan default established; equitable mortgage over disputed subdivision not proven, but guarantor’s house and vehicle enforceable to satisfy debt.
Equitable mortgage – Creation and proof – Consistent property description and surrender of title deed required; Loan default – entitlement to judgment; Foreclosure and enforcement – guarantor’s property and vehicle enforceable; Sale of confiscated movables – application to reduce indebtedness; Procedure – Originating summons under Order 30 Rule 14.
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24 September 2021 |
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The applicant failed to show the arbitral award offended public policy; the court refused to set it aside.
Arbitration — setting aside arbitral award — public policy — narrow, high threshold; scope of arbitration; mistakes of law apparent on face; Rule 23 compliance; finality of arbitral awards.
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20 September 2021 |
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A written loan agreement binds the parties despite payment in local currency; interest assessment referred to Registrar under statutory framework.
Contract law – written loan facility – parol evidence rule – payment in local currency does not vary clear written terms – interest computation under Banking and Financial Services Act – referral to Registrar – interest thereafter at 1% above LIBOR – costs to successful lender.
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14 September 2021 |
| August 2021 |
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Court struck out clause converting security to sale, revised excessive interest, ordered revised judgment debt and mortgage remedies.
Money-lenders Act — excessive interest — statutory requirement to express or compute annual rate — unconscionable terms; equitable mortgage by deposit of title deeds; clog on equity of redemption — conversion clause void; estoppel cannot validate statutory non-compliance; revision of interest and mortgage remedies.
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26 August 2021 |
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Court awarded discounted principal less illegal penal interest; no equitable mortgage without co‑owner consent.
Mortgage law — equitable mortgage; joint ownership and consent to deposit of title deeds; penal interest illegal; compromise/discount binding; burden to prove contractual interest rate and annexures.
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23 August 2021 |
| May 2021 |
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Court held respondents liable for the applicant's lost cargo, rejecting liability limitation due to defective airway bill and agency.
Carriage by air — Warsaw Convention applicability and domestic Carriage by Air law — Airway-bill requirements (Article 8(c)) — Agency and beneficial ownership in freight transactions — Limitation of liability (Article 22) — Burden under Article 20 and adverse inference where carrier cannot explain loss.
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28 May 2021 |
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Court set aside fraudulent assignment, restored title, held transaction to be a loan, fixed K300,000 repayment with specified interest and dismissed counterclaim.
Property law – registered assignment – alleged forgery and handwriting evidence – fraud vitiating registration; Lands and Deeds Registry Act – cancellation/restoration of certificate of title; Contract characterization – loan (mortgage) versus sale; Money Lenders Act – permissible interest and unconscionable charges; remedies – repayment, sale of secured property, costs.
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20 May 2021 |
| April 2021 |
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A judgment debtor (including a company in receivership) cannot claim goods seized in execution; notice set aside, sale stayed 90 days.
Execution – Notice of claim to goods – Judgment debtor (including company in receivership) cannot claim goods seized in execution; Receivership – receiver is agent (Corporate Insolvency Act s13) – locus standi; Consent judgment enforceability; Stay of sale pending settlement.
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19 April 2021 |
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Plaintiff proved a K1,539,705.65 debt based on long-standing commercial dealings; defendant's fraud counterclaim was unproven.
Commercial law – recovery of debt for goods and services; agency and apparent authority of company officers; counterclaim alleging fraud requires particularised proof; evidentiary weight of course of dealing and invoice documentation; award of interest where unliquidated damages not proved.
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14 April 2021 |
| March 2021 |
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Interpleader upheld: seized trailer and vehicle belong to third parties; guarantors not liable before sale of primary security; stay and costs granted.
Civil procedure – Sheriffs interpleader – Order 17 White Book – Claim to goods seized in execution – Burden to prove title – Enforcement sequence: primary security before guarantors – Stay of execution – Costs.
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24 March 2021 |
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Claim for rental arrears dismissed because defendant failed to prove arrears remained after distraint; lease not shown to be unregistered.
Lease – existence and commencement – rent obligation date – distraint (warrant of distress) – burden of proof as to outstanding arrears after distraint – effect of non-registration allegation on enforceability of lease.
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18 March 2021 |
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Court may hear applications to amend pleadings or witness statements after trial commencement where Order 18 and justice permit.
Civil procedure – interlocutory applications – Order 19 r.3 SI No.58/2020 prohibiting interlocutory applications within 14 days of trial – Order 19 r.3(4) discretion and reasonable diligence – Amendment power of court under Order 18 r.1 – Witness statements and Practice Note 38/2A/9 – timing of objections to witness statements.
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15 March 2021 |
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Defendant’s challenge to a writ’s amount dismissed; writ correctly reflected the debt accelerated by default.
Civil procedure – Execution – Writ of fi. fa. – Issuance after default under conditional installment order – Accuracy of amount stated – Order 45(1)(5) White Book (editorial notes) – Cubitt v Gamble distinguished – Application to set aside for irregularity dismissed; costs awarded.
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10 March 2021 |
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Whether an agent’s apparent/actual authority binds the principal and whether a bank is negligent in opening the principal’s account.
Agency/Partnership – nature of relationship and profit-sharing; Actual and apparent authority of agent; Turquand/indoor management rule; Bank’s good-faith reliance on agent’s authority; Burden of proof for fraud and negligence; Limited monetary award and dismissal of damages claims.
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5 March 2021 |
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Whether a notice of admitted indebtedness permits foreclosure or sale absent clear admission and documentary proof of a legal mortgage.
:[
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5 March 2021 |
| February 2021 |
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Plaintiff proved contracts and payment; court ordered refunds with interest, denied specific performance and attachment, and awarded token damages.
Contract law – breach of contract; specific performance discretionary and inappropriate against absent/respondent of unknown whereabouts; refund of payments ordered; attachment of chattel requires clear title; unliquidated damages require evidential proof; interest awarded at 2% above LIBOR; Commercial List procedural compliance and substituted service.
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1 February 2021 |
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Contract incorporated tender specifications; ladders unfit for intended purpose—plaintiff's claim dismissed; each party to bear own costs.
Contract formation — incorporation of tender/quotation and technical specifications into Purchase Order by reference; admissibility of extrinsic documents; Sale of Goods Act s.14 — merchantable quality and fitness for a particular purpose; acceptance and rejection of goods; costs discretion.
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1 February 2021 |