278 jumanne alli so hamisi v r crim app 239 m 67 767

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278. Jumanne @ Alli s/o Hamisi v. R., Crim. App. 239-M-67; -/7/67; Cross, j. Accused were convicted of theft. Indispensable to the prosecution case was the testimony of the Prosecuting Officer, who also did much of the investigation be- fore the case came to trial. Held: The High Court cited Gamalieri Mubito v. R. (1961) E.A.C.A. 244, where it was stated that, “…….. in a case where an investigating officer con- ducted the prosecution himself or was present while the prosecution witnesses gave their evidence and then entered the witness box and supplemented their testimony,” a failure of justice may well have been occasioned. In the present case the convictions were quashed because there was lacking that appearance of fairness and impartiality which should characterize the administration of the criminal law. In view of the importance of the evidence or prosecuting Officer, the Court could not be sure that there was no failure of justice. 279. Abbas G. Essaji v. Gordhan Dewji Solanki , Misc. Civ. Case 40-D-67, 10/8/67, Georges C. J. Every memorandum of appeal must have attached a formal order of the lower court’s ruling. Earlier, appellant had sought to appeal a lower court decision. He had submitted a document purporting to be a formal order of the lower court, is- sued by that court, but not in fact the require document. After respondent’s timely objection, appellant had sought an adjournment to put the papers in order. Ham- lyn, J., had held that (1967) H.C.D. - 79 –
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Because the papers were not in order, there was nothing before him and conse- quently nothing to adjourn. In the present application, appellant sought an exten- sion of time for filing his appeal. Held: (1) The earlier ruling is not res judicata so as to prevent appellant from filing his appeal again, this time in proper order. Since the earlier appeal was incompetent, there was no “res” before the Court capable of becoming “judi- cata.” Citing Ngoni-Matengo v. Alimohamed Osman (1959) E.A. 577. (2) Coun- sel’s failure here was in not realizing that the order he obtained from the trial court was not in proper form. Not with standing the inconvenience to respondent, justice will be best served by not barring appellant’s application for an extension of time because of counsel ’s error. Order that appellant be given 5 days to file an Appeal in proper form. 280. Shabani Furia v. Lokila Maura , (L.C.) Civ. App. 12-D-65; 9/8/67, Hamlyn J. Plaintiff ‘ s wife left him some 17 years ago, with their baby daughter. Defendant took them in, and the girl lived with defendant thereafter until the present. The mother died recently, and plaintiff, the girl’s father, brought this action to obtain custody of the girl. Held ( 1) Plaintiff had the right to custody of the girl, not with standing the fact that he had made no effort in the last 17 years to ascertain the whereabouts of the daughter, let alone provide for her in any way. (2) Plaintiff was ordered to pay Shs. 500/- to defendant as compensation for the expenses incurred in caring for the girl.
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