Results.
41 judgments found.
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| December 2009 |
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Whether a personal-to-holder managerial salary confers substantive grade rights and entitlement to restructuring increments.
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Employment law — demotion with personal-to-holder salary — effect on substantive grade and entitlement to increments; calculation of early separation/terminal benefits; interest on outstanding terminal benefits.
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30 December 2009 |
| November 2009 |
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Transfer and acceptance of a new contract with a sister company defeated the respondent's claim for benefits under the original fixed-term contract.
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Employment law — fixed-term contract — transfer to sister company — execution of new contract and payment of dues — repudiation v consent — measure of damages for breached fixed-term contracts; civil procedure — defective appeal record — appellate discretion to proceed.
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20 November 2009 |
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A challenge to vehicle forfeiture arises on seizure; claims brought after the statutory period are statute-barred.
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Customs and Excise Act s159 (forfeiture on seizure) — cause of action arises on seizure; s164(3) — statutory limitation/notice; statutory limitation defence need not be pleaded; seizure and forfeiture challenges time-barred.
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20 November 2009 |
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The appeal was allowed and the appellant’s six-year sentence was backdated to his arrest date for pre-trial custody credit.
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Criminal law — Sentencing — Backdating of custodial sentence to account for pre-trial custody — Discretion of trial judge — Appellate intervention where no factors militate against giving pre-trial custody credit.
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5 November 2009 |
| October 2009 |
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Claim for unpaid rent dismissed to prevent unjust enrichment where claimant occupied company-provided housing while receiving allowance.
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Property/tenancy — rent payments — transfer to third party; unjust enrichment — claimant occupying company-provided housing while receiving housing allowance; appellate review — credibility findings and record of trial court.
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30 October 2009 |
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The appellant had no accrued right as a sitting tenant to purchase; possession granted and appeal dismissed.
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Possession of employer‑allocated premises; sitting tenant v licensee; cessation of licence on termination of employment; Order 35 (absence judgment) and Rule 5; mesne profits; admission of fresh evidence on appeal; case management in Commercial List (adjournments/closure).
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27 October 2009 |
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Advocate may swear affidavit for ex parte leave to commence committal; subsequently pleaded defences do not justify vacating that leave.
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Contempt proceedings — Order 52 r.2 (leave to apply) — advocate-deposed affidavits in ex parte procedural applications — Chikuta distinguished — ex parte leave not vacated by filing of defence raising justification/fair comment — Order 32 r.6 inapplicable to Order 52 leave.
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16 October 2009 |
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Appeal against judgment entered without hearing counsel dismissed for lack of merit; costs awarded to respondent.
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Civil procedure — Entry of judgment without hearing counsel — Appeal against procedural irregularity — Whether such entry warranted setting aside the judgment.
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15 October 2009 |
| September 2009 |
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Whether a company’s board may lawfully vary a collective agreement without the management/bargaining unit’s statutory consent.
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Collective agreements — Variation of collective agreement — Bargaining unit defined as management — Board of directors cannot validly vary collective agreement absent statutory party consent — Pleadings and admission — Referral to Deputy Registrar for assessment of individual entitlements.
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24 September 2009 |
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Interlocutory injunction set aside because no status quo existed when sponsorship was withdrawn and the study period had expired.
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Civil procedure — Interlocutory injunction — Status quo principle — Sponsorship withdrawn before proceedings — No preservation to restore — Timing of application; adequacy of damages as alternative remedy.
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18 September 2009 |
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Appellant's excessive 15-year sentence for child abduction reduced to a lawful eight-year term under section 136.
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Criminal law — Abduction of a child — Sentencing — Section 136 Penal Code (minimum seven years, maximum ten years) — Excessive sentence — Appellate reduction to lawful term — Mitigation considered.
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11 September 2009 |
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Appeals from High Court chamber orders require mandatory leave and strict compliance with appeal filing rules; non-compliance renders appeals incompetent.
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Civil procedure — appeal from orders made in chambers — section 24(1)(e) Supreme Court Act — mandatory leave to appeal — compliance with Rules 58 and 70 (Memorandum of Appeal and Heads of Argument) — arbitration exception (s.24(1)(e)(v)) inapplicable where not a special case stated — non-compliance renders appeal incompetent.
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3 September 2009 |
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Sentence of 40 years for defilement of a three‑year‑old reduced to 25 years; victim’s tender age is a valid aggravating factor.
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Criminal law — Defilement — Sentencing — Whether 40 years’ imprisonment for defilement of a three‑year‑old was excessive — Plea of guilty and first‑offender status as mitigating factors — Victim’s tender age as legitimate aggravating factor — Statutory range 15 years to life permits judicial discretion.
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3 September 2009 |
| August 2009 |
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Appeal against a 35‑year sentence for defilement allowed; sentence reduced to 30 years balancing gravity and mitigating factors.
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Criminal law — Defilement of a child — Sentencing — Abuse of trust and victim’s young age as aggravating factors — First offender status, early guilty plea and age as mitigating factors — Reduction of sentence from 35 to 30 years.
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11 August 2009 |
| July 2009 |
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Supreme Court has no jurisdiction to grant bail pending trial absent a pending appeal and prior High Court refusal under s.336.
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Criminal procedure — Bail pending appeal — Section 22(1) Supreme Court Act — Requires prior High Court refusal under s.336 and a pending appeal; Supreme Court lacks jurisdiction to grant bail pending trial absent these conditions.
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16 July 2009 |
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Judicial review is inappropriate for a magistrate’s prima facie ‘case to answer’ finding; appeal lies after conviction.
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Criminal procedure — Section 206 Criminal Procedure Code — ‘prima facie’/case to answer — Magistrates not obliged to give reasons for finding a case to answer — Judicial review v. appeal — Interlocutory appeals in criminal matters — Procedure for leave to apply for judicial review (Order 53/English practice).
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9 July 2009 |
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Rule 78 correction deletes reference to withdrawn grounds; substituted grounds supported by written heads; dismissal affirmed.
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Procedure — Rule 78 correction of judgment; Appeal — substitution of grounds supported by written heads; Findings of fact — limited appellate interference (Attorney General v Achiume); Employment discipline — entitlement to be heard where suspension letter and charge substantially align.
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2 July 2009 |
| June 2009 |
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Written-contract redundancy requires proper consultation and notice; payment in lieu does not excuse unlawful redundancy.
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Redundancy law — application of statutory redundancy provisions to written versus oral contracts; contractual redundancy clauses and duty to consult and give notice — planning, selection and alternatives; constructive dismissal — definition and limits; damages for wrongful dismissal — measure and exceptional awards for distress; payment in lieu of notice not a substitute for redundancy consultation.
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12 June 2009 |
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Employer’s bad-faith, procedurally defective redundancy rendered the respondent's termination wrongful; 24 months damages upheld.
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Employment law — redundancy vs constructive dismissal; written contract incorporating redundancy safeguards — duty to consult and minimise impact; payment in lieu of notice not a substitute for redundancy procedure; wrongful dismissal where redundancy used in bad faith; damages for loss of employment and limits on awards for mental distress.
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12 June 2009 |
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An appellant who, as a wrongdoer, fires at law‑enforcement cannot successfully claim self‑defence or avoid malice aforethought.
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Criminal law — Murder — Malice aforethought; Self‑defence — availability where appellant provoked the confrontation; Defendant a poacher who fired at law‑enforcement; Extenuating circumstances — s.201(2) Penal Code — not established.
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4 June 2009 |
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Court reduced an excessive 15-year sentence for a first-time miraa trafficker to five years; deportation order upheld.
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Narcotic Drugs and Psychotropic Substances Act — sentencing — first offender entitled to leniency absent aggravating factors; Section 6 (maximum penalty), Section 44 (minimum for subsequent offences) — reduction of excessive sentence; deportation order remains enforceable.
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4 June 2009 |
| May 2009 |
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A Rule 78 slip-rule motion cannot be used to reopen or review a final judgment; such abuse is dismissible with costs.
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Civil procedure — Appellate procedure — Rule 78 (slip rule) — Limitation to correction of clerical errors and accidental slips — No jurisdiction to reopen final judgment on merits — Abuse of court process — Costs.
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14 May 2009 |
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Failure to compile a complete Record of Appeal as required by the Rules warrants dismissal and costs awarded against counsel for misrepresentation.
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Civil procedure — Record of Appeal — Requirement to include proceedings/transcript under Rule 58 — Non‑compliance sanctions under Rule 68(2) — Filing incomplete supplementary record — Counsel’s misrepresentation and professional misconduct — Costs against counsel.
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14 May 2009 |
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Court allowed plaintiff's leave to amend, holding amendments arose from same facts and did not introduce a new cause.
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Civil procedure — Amendment of pleadings — Order 18 rule 1 High Court Rules; Order 20 rule 5 Rules of the Supreme Court — Adding or substituting a new cause of action allowed if arising out of same or substantially same facts — Prejudice and interests of justice — Leave to amend granted.
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14 May 2009 |
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A judge is not functus officio merely because he dismissed a misconceived application; proper application for leave to file appeal record out of time must be considered.
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Civil procedure — late filing of record of appeal — distinction between application to extend time and application for leave to file record out of time — functus officio — when a judge may be precluded from further acting.
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13 May 2009 |
| April 2009 |
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Withdrawal of a presidential election petition resulted in petitioner bearing 1st respondent’s costs; other parties to bear their own costs.
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Electoral law — Presidential election petition — Withdrawal/abandonment midstream — Costs — Non-frivolous constitutional election challenges ordinarily merit each party bearing own costs, but abandonment after incurring a particular respondent’s expenses may justify costs against the petitioner — Section 99(4) Electoral Act discretion on costs.
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28 April 2009 |
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Circumstantial electronic evidence and reliable parade identification upheld convictions and 20-year sentences for aggravated robbery.
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Criminal law — aggravated robbery — circumstantial evidence — electronic records tracing a stolen Celtel scratch card to a SIM recovered from accused; identification evidence — reliability of parade identification after prolonged exposure; association/‘odd coincidences’ as cumulative proof; sentencing discretion and appropriateness of 20 years' imprisonment.
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8 April 2009 |
| March 2009 |
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Whether MPs’ statutory right to participate in a constitution‑making conference merits injunctive protection against party expulsion.
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Constitutional law — National Constitutional Conference Act s.4 — statutory membership of MPs — Attorney‑General intervention on public interest — interlocutory injunctions; adequacy of damages vs public statutory compliance.
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31 March 2009 |
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Whether the pension fund lawfully deducted employer-requested overpayments and whether counsel may be personally ordered to pay costs.
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Superannuation fund deductions — Section 45(2) Local Authorities Superannuation Fund Act — employer's request need not be in writing — recovery of over-payments — factual finding of indebtedness — personal costs order against counsel for failure to advise.
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24 March 2009 |
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Interlocutory recounts require cogent, uncontested evidence; contested affidavits and legality challenges do not justify an immediate recount.
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Presidential election petition — application for recount — recount is interlocutory and not automatic — requires cogent evidence — contested affidavits insufficient — non‑compliance with Electoral Act (legality/validity) not a proper basis for recount.
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11 March 2009 |
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Conviction quashed for denial of counsel, refusal to call a defence witness and improper shifting of the burden of proof.
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Criminal procedure — right to fair trial — Article 18(1), (2)(c)–(d) — denial of legal representation and preparation — refusal to call defence witness — improper shifting of burden of proof — miscarriage of justice — conviction quashed and accused acquitted.
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5 March 2009 |
| February 2009 |
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A bank cannot be held liable for payment on an alleged forged cheque where the finding rests solely on hearsay evidence.
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Bank liability — payment on cheque alleged to be forged — requirement of admissible evidence; Hearsay — inadmissible as sole basis for factual findings; Burden of proof — plaintiff must establish case on balance of probabilities; Civil procedure — substitution of deceased party where plaintiff dies before testifying.
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27 February 2009 |
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Redundancy transformed occupant into a licensee, negating any first-refusal purchase right; sale to third party upheld.
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Employment law — redundancy and occupation of company housing — entitlement to first right of refusal under internal sale memorandum — licensee versus sitting employee/tenant; Contract law — offer, acceptance and payment evidence; Contractual privity and rights of a non-party to enforce a sale; Corporate identity and effect on employee benefits/sale schemes.
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27 February 2009 |
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A registrar or a single deputy chairperson lacks jurisdiction to decide joinder under Rule 32; a properly constituted IRC must hear it.
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Industrial Relations Court — Rule 32 — joinder of parties — Interpretation of "court" — Requirement for a duly constituted bench under s.89(2) — Registrar or Deputy Chairperson sitting alone lacks jurisdiction to grant joinder.
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26 February 2009 |
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Partners held personally liable for firm’s failure to account for client funds; appeal dismissed.
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Professional discipline — Valuation Surveyors Rules — breach of Rules 1 and 7(b) for failure to account/remit client funds — distinction between personal disciplinary liability and vicarious liability — partners’ responsibility for branch office misconduct — procedural bar to raising new grounds of appeal (Order 59/3 RSC).
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26 February 2009 |
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Enforceable oral sale upheld; valuation order reversed—specific performance on contractual terms; mesne profits only from judgment date.
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Contract law — enforceability of oral sale agreement for land; specific performance; remedy of mesne profits and their commencement date; admissibility of supplementary appeal record; requirements for leave to amend cross-appeal grounds.
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13 February 2009 |
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Allegations of falsehoods and intimidation were not proved to annul a narrowly lost parliamentary election.
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Electoral law — election petitions — illegal practices and false statements — intimidation by traditional leaders — campaigning in polling precincts — standard of proof in election petitions — appellate review of credibility findings.
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11 February 2009 |
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Buyer may recover value of removed or vandalized fixtures under an "as is" sale, but not mesne profits.
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Sale of property — collateral warranty "on as is basis" — buyer takes property as found but seller liable for removed/damaged fixtures — assessment of damages by Registrar — mesne profits unavailable absent landlord–tenant relationship.
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4 February 2009 |
| January 2009 |
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Whether the plaintiff was the sitting tenant entitled to purchase an Institutional government flat under the sale policy.
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Property law — Government housing policy — distinction between Institutional houses and pool houses — sitting tenant entitlement to purchase — appellate review of trial court findings where evidence misapprehended (see Zulu v Avondale Housing Project Ltd).
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30 January 2009 |
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Medical evidence negating penetration warranted substituting defilement conviction with indecent assault; mutual corroboration of child witnesses upheld.
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Criminal law — Defilement v. indecent assault — medical evidence on hymen and inflammation; Juveniles Act s.122 — capacity to understand oath; corroboration in sexual offences — mutual corroboration (Mulenga); appellate substitution of conviction — Supreme Court Act s.15(3) and Crim. Proc. Code s.186(3)
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20 January 2009 |
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Appeal allowed: court set aside orders for pension payments and regular allowances, and dismissed cross-appeal regarding pension scheme payments.
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Industrial relations — early retirement under collective agreement — entitlement to pension or refund — admissibility and effect of evidence of refunds; Collective agreements — interpretation of Clause 49 — scope of benefits during notice period; Pension law — defined-benefit vs defined-contribution schemes — scheme approval and compliance with Income Tax Act; Civil procedure — appellate review of factual findings where lower court omitted material evidence.
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15 January 2009 |