CIVIL PROCEDURE CASE NOTES LLB IV

TOPIC 1: SUMMARY PROCDURE & ALL APPLICATIONS UNDER ORDER

36 CPR

1. Nakabago co-op society v Livingstone Change (HCCS No, 4/1991)

A recessional order was sought where a magistrate grade II had

entertained a summary suit to recover shs. 460,000, given judgment and
issued execution proceedings.

Held; inter alia that the civil procedure rules which provide for summary
suits are inapplicable in courts presided over by magistrates grade II&III.

In essence, the magistrate grade II lacked jurisdiction to entertain a

summary suit as per the civil procedure rules.

2. AGASA MAINGI V AG (CASE NO. 0095/2002) RULING BY JUSTICE

J.B.A KATUTSI
This was an application by way of chamber summons brought under
the provisions of rule 6 of the civil procedure (government
proceedings) rules and 0.11 r.6 of the civil procure rules for orders
that;
i) Judgment in default be entered against the
respondent/defendant.
ii) In the alternative, judgment on admission be entered against
the respondent/defendant.
iii) Costs of the suit

It is to be remembered that under 0.36 of the CPR, no action can be

commenced against the government except by leave of court and according

1
to rule 6 of the civil procedure (government proceedings) rules, it is stated
that “judgment shall not be entered and no order shall be made, against the
government in default of appearance or pleading under any provision of the
principal rules without leave of court, and application for such leave shall
be made by summons served not less than seven days before the return
day.”

In the instant case, the chamber summons was filed in court on

21/2/2002, attorney general was served with the summons on 21/2/2002
applicant told to go back, when he returned to AG chambers on 4/3/2002,
he was given the stamped copy of the summons.

Further still, the attorney though served, did not appear in court.

Justice Katutsi ruled that on the ground of the attorney general not entering
appearance in court alone and yet he had been served, the application
should succeed.

However, the application in the alternative was ruled to be misconceived.

3. TOMASI IRUMBA & ORS V AG (1991) HCB 90

This and similar files originated from a district registry for high courts
guidance as per 0.46 r.7 of the CPR (then)

All 4 suits had been filed against the AG. No appearance was entered in the
prescribed time where at the district registrar entered interlocutory
judgments against the AG in all the 4 files. No leave of court was sought by
the plaintiff and no service of such application was made on the AG.

2
Later it came to be realized that the AG had entered appearance and filed
WSD in the high court registry at Kampala. Copies of the same reached the
district registry after interlocutory judgment had been entered.

The district registrar forwarded the files to the high court to make decisions
on whether the AG is by law at liberty to enter appearance and file WSD in
the high court registry at Kampala in suits filed in district registries.

It was also for decision whether the interlocutory judgment in default of

appearance was justifiably entered.

Held;

1. According to the government proceedings act, cap 69, the AG may

enter appearance either in the district registry or in the central office
of the high court in Kampala and in such a case all steps in relation to
the proceedings up to trial shall be taken as though the proceedings
had been instituted in the central office.
2. The learned district delegate ………..in passing judgment against the
AG in default of appearance without abstaining leave of the court and
having not served the AG.

4. AG V SENGENDO (1972) EA356 (CAK)

This was an appeal by the AG before the court of appeal at Kampala before
a panel of 3; sir William Duffus, P. Lutta & Mustafa JJA . Mustafa JA wrote
the lead judgment of the court.

The facts were that he respondent had obtained a judgment in his favor at
the trial court; that is he was awarded general damages in an action
brought against the AG as representing government of Uganda where the
trial judge found the government vicariously liable for injuries caused to the

3
respondent while driving on Kampala road by soldiers who had fired both at
him and his car.

The AG appealed against both the assessment of the damages and also that
rule 6 of the civil procedure (government proceedings) rules barred the suit
against the government.

However, Mustafa J.A concurred with the trial judge’s findings that; r.6 of
the civil procedure (government proceedings) rules was inapplicable in the
instant case, as the respondent wanted his suit heard and in fact was set
down for hearing and not asking for judgment in default.

The judge further agreed with the trial judge’s findings on the question of
damages.

Appeal dismissed

The rationale for summary procedure

5. Kyomya Byemaro John V Agro Finance Trust Ltd (Miscellaneous

Application no. 376/2011) Arising from HCCS NO. 221/2011

THIS WAS a ruling delivered by lady justice Hellen Obura. The application
was brought by the applicant under 0.36 r.3 & 8 of the CPR for leave to file.

Written statement of defense to appear and defend the main suit. The
applicant contended that the application raised two triable issues namely;
whether the applicant still owes that respondent any money and whether
the guarantor is not liable for the loan.

Her lordship stated that it is a settled principle of law that before leave to
appear and defend is granted the defendant/applicant must show by
affidavit or otherwise that there is a bonifade triable issue of law and fact.

4
The issue for determination in the application was whether the
defendant/applicant has by his affidavit or otherwise disclosed a triable
issue.

In answering the issue, her lordship found that in view of her findings of
suspected illegality, this court should not grant leave to the applicant to
appear and defend the main suit. The applicant had no definite defense.

The evidence available showed that the security he gave for the loan which
he believed could have been sold to recover the loan was not sold because
the certificate of title was not genuine. That also a court of justice cannot
sanction illegality (see Makula International v His Eminence Cardinal
Nsubuga CA No. 14/1981)

Also the argument that the guarantor for the loan should be responsible for
payment of the loan and not the applicant was an argument which can only
be advanced by the fraudulent person but not a triable issue.

Her lordship also cited with approval the decision in the case of Zola &
Another V Rally Brothers Ltd and Another (1969) EA 691 at pg 694

Where the court stated the rationale for summary procedures; that order 36
is intended to enable a plaintiff with a liquidated claim, to which there is
clearly no good defense to obtain a quick and summary judgment without
being unnecessarily kept from what is due to him by the delaying tactic of
the defendant.

The judge did not find merit in the proposed defense advanced by the
applicant that it should be the guarantor to pay. She also did not find any
reasonable ground of defense on the allegations that the land was sold and
the loan plus the interest recovered the alleged triable issues were found

5
both unsustainable and therefore a mere sham that is intended to buy time
and abuse the court process.

The application was dismissed with the costs and the judgment was entered
for the plaintiff respondent in the sum of shs 286,072,279/= as prayed for
in the plaint and costs of the main suit plus costs of the application were
awarded to the plaintiff.

5. Sembule Investment Ltd V Uganda Baati Ltd (Miscellaneous

Application No. 0664/2009) (Arising from Civil Suit No. 0410/2009)

In this application, the ruling was delivered by the hon. Lady Justice Irene
Mulyagonja. This was an application for leave to appear and defend the
main suit under 0.36. as usual the applicant/defendant contended that it
had triable issues. The applicant alleged existence of a joint venture
arrangement between the parties when the plaintiff supplied the goods for
which the defendant issued cheques.

Her lordship J. Munyagonja cited the case of Zola & another v rally
brothers ltd & another (1969) EA 691 where the court stated that the
rationale of order 36 is that it is intended to enable a plaintiff with a
liquidated claim to which there is clearly no good defense, to obtain a quick
and summary judgment without being unnecessarily kept from what is due
to him by delaying tactics of the defendant. If the judge to whom the
application is made considers that there is a reasonable ground of defense
to the claim the plaintiff is not entitled to summary judgment. Normally a
defendant who wishes to resist the entry of summary judgment should
place evidence by way of affidavit before the judge showing some reasonable
ground of defense.

6
Her lordship continued further to state that the high cost of litigation and
the premium of holding cash when interest rates are high greatly increase
the attractiveness of procedural shortcuts such as order 36 to commercial
plaintiffs. And in a jurisdiction where the courts are inundated with work
with the lists becoming longer every day, the benefits of order 36 became
even more attractive and they ought to be exploited to enable appropriate
litigants to obtain summary judgments where the rights of those that owe
them are found not to be prejudiced by that procedure.

For the application to succeed, the applicant defendant must have a “good
defense” as per 0.36 r. 7 of the CPR. The applicant must also prove that
there is a bonifade triable issue of fact or law that he will advance in defense
of the suit.

In view of the above, it was ruled that the defense that the cheques issued
to the plaintiff were all according to a joint venture arrangement or
agreement could not be sustained because there was no such arrangement
or agreement. The defense that the defendant was in breach of the alleged
contract for a joint venture also could not prima facie be sustained.

In conclusion, since the defendants proposed defense were all prima facie,
unsustainable and therefore a sham, no genuine or plausible triable issues
were raised by the application and it was accordingly, dismissed with costs
and judgment was entered for the plaintiff in the sum of shs.
1,474,394,037/= and the costs of the suit.

7
6. Zola and Another v Ralli Brothers Ltd & Another (1969) 1 EA 691
(CAN)

This matter before the court of appeal at Nairobi was presided over by a
panel of 3; Sir Charles Newbold. P, Duffs V-P & Law J.A.

This appeal arises from the trial courts grant of summary judgment in favor
of the respondents. The appellant challenged the affidavit in support by the
respondent at comply with the law (their 0.18 r.35) and further that his
application had traible issues which the trial judge failed to consider.

Sir Charles Newbold. P delivered the judgment for the court and the
dismissing the appeal, remarked…. The rationale of 0.35 CPR of Kenya
(equivalent of Uganda’s 0.36 CPR ) is that it is intended to enable a plaintiff
with a liquidated claim, to which there is clearly no good defense to obtain
quick and summary judgment without being unnecessarily kept from what
is due to him by delaying tactics of the defendant. The fact that a defendant
might have a claim to contribution against another person did not entitle
him to leave to defend.

The trial judge’s decision were upheld and the appeal was dismissed.

Other members of the court (Duffus v-p & law JA concurred in the order
proposed).

NATURE OF CLAIMS UNDER SUMMARY PROCEDURE

7. Begumisa George v East African Development Bank (Miscellaneous

Application No. 0451/2010) (Arising from Civil Suit No. 2258/2005)

8
The application was presided over by the hon. Lady Justice Irene
Munyagonja Kakooza. The applicant (George Begumisa) was the MD of a
company indebted and he brought this application under 0.36 r.3 CPR for
an order of unconditional leave to defend the main suit.

Brief facts/background were that the applicant were indebted to the

respondent bank, failed to service the loan (4,723,955 US $) in the main
suit, the respondents sued claiming her money from the applicant. The
applicant being the managing director of the company, further executed a
continuing personal guarantee for the repayment of the loan. Subsequently,
a consent judgment was executed in which the company (M/S Begumisa
enterprise ltd agreed to pay USD 1,559,639 due to M/S Barclays bank (U)
Ltd. It was agreed that interest would continue to accrue on both at the
contractual lending rates. The company did not pay off the debt as agreed.
All efforts to recover the debt through the debenture and mortgage also
failed.

The respondent therefore filed a summary suit under 0.36 to recover the
debt that had been agreed upon in the consent judgment with interest, by
enforcement of the personal guarantee that was signed by the applicant as
collateral security for payment of the debts of the company. The applicant
brought this application for unconditional leave to defend that suit. He
alleged that he had triable issues, that the consent judgment varied the
terms of the loan or lease agreement thus the company was no longer
indebted. That the said variations released the applicant from his
obligations as a guarantor.

That the suit was wrongly brought under 0.36 CPR because one of the
claims therein is interest.

9
In the consent judgment, the applicants properties claimed would be sold
(as agreed)

Justice Munyagonja ruled out the applicant who claimed that a suit under
0.36 cannot be brought against a guarantor as it is in the nature of general
damages.

Issues for determination on the application were whether the suit was
properly brought under 0.36 & if so, whether the applicants affidavit rises a
good defense to the suit and therefore bonifade triable issue for the
determination of the court.

Her lordship ruled that the debt claimed from the applicant amounted to a
liquidated demand within 0.36 CPR and that the plaint was properly
endorsed under summary procedure. The defense were found to be
unsustainable and therefore not constitute triable issues. The application
was allowed for the suit to be defended only on the issue of interest.

Thus 0.36 is not limited to money, but all proprietary claims such as on
properties guaranteed as well. Judgment was entered for the plaintiff.

8. Kasule V Kawesa (1957)1 EA 611 (HCU)

The plaintiff had instituted the suit by summary suit under 0.33 CPR (now
0.36) and claimed shs. 2500/= on an agreement, and also claimed interest
at 6% from the date of filing the plaint. The defendant contended that the
claim for the interest was not a liquidated claim under the order.

The objection was upheld, Keatinge J, holding that the plaint was
irregularly presented under the equivalent of 0.36; the defendant was also
granted leave to appear and defend.

10
9. Zola and Another v Ralli Brothers Ltd & Another (1969) 1 EA 691
(CAN)

The respondents had sued claiming payments under a guarantee given by

the appellants by way of summary procedure and the court entered a
summary judgment in his favor.

The trial court’s decision was upheld and the appeal was dismissed.

10. Budai Coffee Hulling Factory Ltd v Eria m Babumba (1963) 1 EA

613 (HCU)

The plaintiff filed a plaint specially endorsed for summary procedure under
the current 0.36 CPR claiming vacant possession of certain premises and
manse profits from December 1, 1962 until possession. The defendant was
granted unconditional leave to defend and at the hearing of the suit raised a
preliminary objection that 0.36 was not applicable as the action was for the
recovery of premises and not land, and that possession could not be
recovered by summary procedure as 0.36 r.2 deals with the recovery of debt
arising out of actions for the recovery of land.

Jones J found that the plaint was bad and it is not applicable to summary
procedure as 0.36 r.2 only deals with debts or liquidated amount arising out
of action for the recovery of land and not vacant possession of the premises
and further that since the amount claimed in respect of menses profits was
not liquidated, summary procedure was not applicable and the plaints
should be struck out.

11
11. Sterling Tour and Travel Services Ltd & Another V Millennium
travel & tour services ltd ( HCMA NO. 116 OF 2013) Before Hon. Lady
Justice Hellen Obura.

In an application seeking for orders that the applicant to be granted

unconditional leave to appear and defend the suit, one of the grounds was
that the sum claimed by the respondent in the summary suit was not a
liquidated sum capable of being recovered under summary procedure. The
applicant contended that the outstanding balance of USD 37,408 was not
ascertainable as demanded by the respondent for its issuance tickets to the
applicants Passengers. Further still, the statement of account and the
request chits did not correspond in relation to the outstanding balances.

The respondent/plaintiff had only showed the invoice number rather than
the invoices themselves i.e. only invoice numbers were quoted in the
statement of account but the actual invoices were not attached.

To justice Hellen Obura, all those circumstances above raise questions

which require investigations by the court beyond mere calculations whether
the applicant owes the sum claimed to the respondent. She therefore came
to the conclusion that plaintiff/respondents claim was not properly brought
by summary procedure because it required proof by adducing more
evidence.

The applicants were granted unconditional leave to appear and defend the
suit as prayed.

12
Her lordship also advised that it is not mandatory for an applicant for leave
to appear and defend a suit to attach a written statement of defense to the
application as had been contended by the respondent.

Attaching a draft WSD to the application is only a matter of good practice as

was observed by Tsekooko J in Acaali Manzi v Nile Bank ltd case.

Legal effect and procedure in case of both liquidated and unliquitated v

claims

12. Dembe trading enterprises ltd v Uganda confidential (HCT-00-CC-

CS-0612-2006) J Egonda Ntende

The plaintiff who was a dealer in motor vehicles sought to recover the sum
of 26.8 million ug shs with interest of 5% as surcharge on the said sum,
other specified sums of money, general damages, interest at 25% per
annum on decretal amount and costs of the suit.

His lordship observed that the plaint had several claims that is the plaint
had coupled the liquidated demands and pecuniary damages. He explained
that in such a situation 0.9 r.8 would be inapplicable since in the context of
the case, it only applies when the claim is for damages only. That in case
the plaintiff desires to proceed with the conjoined claims then it should be
under 0.9 r.10 which is a general rule.

In the instant, the judgment was entered in favor of the plaintiff under order
9 rule 6 for claims of a liquidated demand and other claims were
abandoned.

13. Sterling Tour and Travel Services Ltd & Another V Millennium
travel & tour services Ltd ( supra in no. 11 above)

13
14. valery Alia v Alionzi John (HCCS NO. 157 OF 2010) Before Justice
Christopher Madiama

In a summary suit, the plaint claimed against the defendant ug shs 138,
100,000/= being the amount due on a lease contract for two motor vehicle
trucks at a sum of ug shs 1,100,000 per week for each motor vehicle, a
claim in conversion and …………general damages for breach of contract,
inconvenience and suffering, exemplarily damages, interest thereon at the
rate of 30% per annum and cost of suit.

Since the plaintiff had had a couple of claims, the court was of the view that
judgment could be entered in respect of a liquidated demand even if there is
a claim for pecuniary damages in the suit.

Nonetheless, since the service on the defendant was ineffective, court set
down the interlocutory judgment which had been entered and remitted the
case back to the registrar from appropriate action.

GROUNDS IN SUPPORT OF APPLICATION FOR LEAVE TO APPEAR AND

DEFEND

1. Begumisa George v East African Development Bank

(HCMA No. 0451 of 2010) Before Lady Justice Irene Mulyagonja
Kakooza (supra in No.7 )

The application was brought under 0.36 r.3 CPR for an order of
unconditional leave to appear and defend the main suit.

14
In his grounds of the application, the applicant alleged that the main suit
had been wrongly brought by summary procedure and further that the
respondent could not sue him as a personal guarantor of the loan by way of
summary procedure.

However, the learned justice found that the applicants defense raised no
triable issues and that the suit had been rightly brought by summary
procedure.

Her lordship observed that it is still the position of the law in Uganda that
an applicant who comes to court seeking for leave to defend a suit under
0.36 CPR must show that he has a good defense on the merits or that there
are circumstances showing reasonable grounds or a bonifade defense.

2. Broad Band Co. Ltd V Joram Mugume (HCMA No. 363/2013)

Before Justice B Kainamura
The application was for leave to appear and defend the main suit. In the
grounds, the applicant denied any contract between it and the respondent
to warranty payment of rent arrears. On the other hand, the respondent
contended that in an agreement, an undertaking had been made for the
applicant to pay of rental arrears due to accompany (TMP Ug Ltd) which had
gone into liquidation (that company had been originally the tenants).
Counsel for the respondent conceded to the application that leave to appear
and defend the suit be granted on condition that the applicant pays the
sum claimed in the head suit.
The question was whether on the grounds of the application, leave should
be conditional or unconditional.
The judge found that the application shows bonifade triable issues and
allowed the applicant to defend itself without imposing any conditions on it.

15
UTC V COUNT DE LA PASTURE (1954) 21 EACA 163
This was an application for leave to appear and defend the suit. The
plaintiff/respondent sued the defendant/appellant for salary and
allowances, irregularly presenting his plaint under 0.33 (now 0.36) for
summary procedure instead of presenting it under orders 4 and 5. The day
following an application by the defendant for leave to appear and defend the
suit, the plaintiff filed without leave, an amended plaint.

Sir Newham Worley at the east African court of appeal, first of all, held that
the suit had been irregularly brought by way of summary procedure. On
page 165, he goes further and says that in such a matter, there is clearly no
discretion to allow any claim to be brought by summary procedure if it not
precisely within the terms of order 33, rule 2 (now 0.36 r.2). In the instant,
it was a claim for damages for wrongful dismissal under various heads, that
is such claims were unliquidated and could not be brought by summary
procedures.
Even no discretion could be exercised to allow the amended plaint without
leave of court which substantially extended and increased the claim.
In the circumstances, an order for leave to defend the original plaint was
granted by the court.

OPPOSING APPLICATION FOR LEAVE

1. Sebyala Kiwanuka and Another v Sendi Edward (HCMA NO.
500/2014) Before lady justice Flavia Senoga angling

The application was brought under 0.36 r.11 and 0.52 rr 1,2 and 3 CPR
and s.33 judiciary act, the applicants sought orders setting aside the default
judgment entered against them in HCCS no. 137/2014; stay of execution of
the decree and grant of unconditional leave to appear and defend the suit.

16
The brief background to the application is that the respondents filed a
summary suit against the applicant who did not seek leave to appear and
defend the suit. The respondent sought and obtained default judgment and
a decree was entered against the applicants. The applicant then filed this
application.

Counsel for the applicant raised an objection that the respondents affidavit
in reply which was opposing the application was filed out of time.

Court found that much as the respondent filed the affidavit in reply out of
the 15 days from the date of service of the application, nonetheless, the
affidavit was filed before hearing of the application, it cannot be said to have
prejudiced the applicant.

The objection was overruled and the application set aside the default
judgment and to grant unconditional leave to defend the suit was ordered to
be heard on merit.

Elias Waziri and two others v Opportunity Bank (U) Ltd. (HCMA NO.
599 OF 2013) Before Hon Lady Justice Hellen Obura

The application was brought under 0.9 r 12 and 27, 0.22 r 23 and 26 of
CPR as well as 5.98 of CPA seeking for orders that a default judgment or
exparte judgment entered against the applicants in the above suit be set
aside and the suit be heard inter parties.

The applicant raised objection where he contended that the affidavit in reply
was filed out of the time by 4 months contrary to 0.12 r 3(2) CPR.

Her lordship adopting the dictum of lord Madrama in stop and see (u) ltd v
tropical Africa bank who stated that for application under 0.12 r 13,
timelines are reckoned from 0.12 r 13(1) that is after completion of ADR or

17
scheduling conference and that pleadings such as defense or reply must be
filed within 15 days from date of service.

accordingly the affidavit in reply was found to be filed out of time (4months)
instead of being filed within 15days as provided by the rules.

Never the less, the objection was overruled, where of court exercised its
discretion to extend the time for filing affidavit in reply.

3. Stop & See (U) Ltd V Tropical Africa Bank Ltd

Similarly, here in J Madrama found that the affidavit in reply had been filed
out of time by about 5 months so it was struck out with costs.

4. Sterling Travel & Tours Service Ltd V Millennium Travel & Tours
Service Ltd (HCMA NO. 116 OF 2013)

The application was for orders that the applicant be granted orders for
unconditional leave to appear and defend the suit and the costs of the
application be provided for.

In the respondent’s affidavit in reply, it was contended that in the

application for leave to appear and defend, the applicant needed to attach a
draft WSD.

This objection was overruled on grounds that it is not a mandatory

requirement to attach a draft WSD to the application, it is only a rule of
prudent practice. In any case, such objection need not be raised in the
affidavit in reply, it can be made orally in court.

18
Odangkara & Others V Kamanda &Another (see supra under affidavits)
Before Sheridan

The plaintiff applied to amend his plaint by substituting the defendant with
another. The application was not supported by any affidavit.

Sheridan J agreed that no affidavit was necessary in this case as there was
no question of evidence; this was purely a matter of law.

Southern Investments Ltd V Mukabura Foundation Investment (HCMA

NO. 105 of 2004) Before Hon. Lady Justice M.S Arach-Amoko

This was an application seeking unconditional leave to appear and defend

the main suit. Counsel for the applicant contended that the facts deposed to
by the applicants counsel stood unchallenged in the absence of an affidavit
in reply.

Court clarified that such objections on questions of law need not be raised
in the affidavit as the practice is that such objections can be raised at the
outset. The objection by the applicant was overruled.

19
 TESTS AND THRESHOLD FOR LEAVE TO APPEAR AND DEFEND

Sterling Tour and Travel Services Ltd & Another V Millennium Travel &
Tour Services Ltd ( HCMA NO. 116 OF 2013)

Therein Justice Hellen Obura stated that in an application for leave to

appear and defend, the applicant must raise the triable issues and that at
this stage court cannot dwell into the merits of the defense as it would
determine the rights of the parties.

1. Bitagase & Another v Mugambe (HCMA NO. 470/2012)

Here still, Justice Hellen Obura in referring to Maria Odido v Barclays bank
Uganda, restated that at the stage of application for leave to appear and
defend, court is not required to inquire into the merits of the issues raised,
however, the issue so raised should be real and not a sham. This is the
rationale for application for leave to appear and defend the suit.

2. Uganda Micro Enterprise Association Ltd V Another V The

Microfinance Support Center (HCMA 125 OF 2005)
In an application to appear and defend the suit, Justice Yorokamu Bamwine
granted the prayers prayed for on grounds that the application raised
triable issues and that those matters ought to go for trial and adjudication.
3. In Godfrey Rwabugunda V Bitamisi Namuddu;
The COA stated similarly that the rationale for an application for leave to
appear and defend the suit is not to determine the rights of the parties in
the main suit.
Default judgment under 0.36 (continuation)

11-4 Edison Kanyabwera V Pastori Tumwebaze (SCCA NO. 6/04)

20
CORAM: ORDER, TSEKOOKO, KAROKORA, MULENGA &
KANYEIHAMBA
The plaintiff appealed to the court of appeal against setting aside an exparte
judgment made in his favor, hence this appeal by the respondent to the
Supreme Court.
The Supreme Court found that the defendant/respondent (present
appellant) had not been served at all with the hearing notice, thus an
exparte judgment ought not to have been made.
The order and judgment of the court of appeal was set aside and the order
of the high court setting aside the exparte judgment was restored.
11-5Pinnacle Projects Ltd v Business in Motion Consultancy
Before Justice Hellen Obura
In this case the applicant was duly served with summons and on failure to
apply for leave to appear and defend the summary suit , with in 10days as
required by the rules, counsel for the respondent wrote to the high court,
commercial division praying that a default judgment be entered against the
applicant under 0.36 r 3(2) of the CPR and the registrar duly entered the
default judgment as requested.
J Hellen Obura fortified the registrar’s decision when she held that the
decree was properly made.
11-6 Uganda Telecom Ltd V Airtel Uganda Ltd (HCMA NO.30 OF 2011)
Before Hon Lady Justice Hellen Obura
In an application for leave to appear and defend the suit, the respondent
raised an objection that the application had been served on 20 th Dec. 2010
and that the 10 days within which to file the application expired on 30 th
Dec. 2010. The application had been filed on 17th January 2011.
The objection was overruled with court holding that the period between the
24th day of December 2010 and 15th day of January 2011 in computation of

21
the time for filing the application, both days inclusive should not be
reckoned within the meaning of 0.15 r.4 CPR
Thus the application which was filed on the 17th January 2011 was filed
with in time, since the time for filing of the application for leave to appear
and defend was meant to expire on the 21st January 2011.
Thus the default judgment entered on the 11th January 2011 and the decree
issued on 1st February 2011 by the registrar were done contrary to the law,
specifically order 36 rule 3(1) and (2) and order 51 rule 4 of the CPR.
The default judgment and decree were set aside.

DEFAULT JUDGMENT UNDER 0.36

11. Pinnacle Projects Ltd. V Business in Motion Consultants Ltd
Justice Hellen Obura
This was an application for summary procedure under 0.36 r.11 of the CPR
seeking for among others orders that a decree passed in HCCS NO.182 of
2010 be set aside. And also costs of the application. It was presided over by
the lordship justice Hellen Obura.
Ruling
The lordship dismissed the application because the decree that it seeks to
set aside was properly passed since there was no competent application for
leave to appear and defend the summary suit. The application had been
filed out of time.
Valery Alia V Alionzi John (supra no. 14 under legal effects in case of
liquidated & unliquidated claims)
The plaintiff must abandon the unliquidated demand if a default judgment
is to be entered in respect of the liquidated demand.
11-2 Sterling Travel & Tours V Millennium Travel & Tours Ltd (supra
no. 11 under nature of claims under summary procedure)

22
Court found that the claims were not liquidated . a default judgment would
not have been entered.

11-3 Craig V Kansen (1943)1 ALLER 108 (COA) Mr. Lord Greene &
Goddard
In an action, an order was made granting the respondent leave to proceed
even when summons upon this order was not served upon the appellant.
On appeal, the order was set aside for failure to serve summons on the
appellant. An affidavit of service had to be filed to prove service and this was
not so.
Application for Leave to Appear and Defend
12. Begumisa George v East Africa Development Bank (supra in no. 7)
The application was for leave to appear and defend the main suit. Irene
Munyagonja found that the application did not disclose issues as the
defenses were unsustainable, thus denied the applicant with leave to appear
and defend.
13. Pinnacle Projects Ltd V Business In Motion Consultants Ltd (supra
in no.11)
This was also an application for leave to appear and defend the main suit.
However, Justice Hellen Obura declined to grant the order since among
others the application had been filed out of time.
14. Venture Communications Ltd V Vertex Prudential Commerce Inc
(HCMA NO. 604/2004) (Arising From Civil Suit NO. 457/2004)
This was before Hon. Justice Geoffrey Kiryabwire. The application was for
an order of extension of time within which the applicant can file an
application for leave to appear and defend HCCS 457 of 2004. It was
brought under S.33 Judicature Act, s.98 civil procedure act, 0.48rr1 &3
CPR.J KIRYABWIRE ruled that the procedural error of citing 0.48 instead of
0.47r.6 was not fatal. And further that under 0.47r.6 (our current 0.51 r.6),

23
the court had wide powers to extend time for filing any application.
Accordingly, he made an order extending time.

15 R.L Jain v Kasozi Micheal & Another (HCMA NO. 585/….

Before Hon Justice Lameck Mukasa
This was an application brought by notice of motion under 36 rules 3 and 4,
orders 52 rules 1 and 3of the CPR for orders that the applicants be granted
unconditional leave ton appear and defend the main suit and also for costs
of the application.
Justice Lameck Mukasa allowed the application to be succeed since there
were identified triable issues; that when the respondent advanced the loan
of shs. 39,000,000/= for a period of 2months, interests at 15% were
accrued and also that the respondent had to sell off the security on default,
this had not been done, thus there is an issue whether in the circumstances
the respondent is entitled to the accumulated interest.
16 Zam Zam Noel & Others V Post Bank Ltd (HCMA NO. 530/2008)
Before Hon Justice Arach-Amoko
The applicant herein did not apply for leave to appear and defend the suit
within the required 10 days, instead he did apply until after one month in
which case he was out of time, this application was dismissed by Lady
Justice Arach-Amoko and a summary judgment was granted in favor of
the respondent. Later he came before the same judge now this time around
applying to set aside a default judgment and be granted leave to appear and
defend the suit under 0.36 r.11 CPR .
The basic issue to be determined by her lordship was whether rule 11 of
order 36 applies in a situation where an application for leave to appear and
defend has been dismissed by the court inter parties.
Justice Arach-Amoko agreed with counsel for the respondent, Mr. Isaac
Bakayana who submitted that rule 11 only applies where the applicant

24
never filed an application for leave to appear and defend a summary suit,
but not for where the application was filed but was rejected by court.
In the instant case where an application for leave to appear and defend was
dismissed the only remedy is an appeal against the dismissal order.
Finally the judge found no merit in the application and dismissed it with
costs to the respondent.

17. Francis Bwengye V Haki Bonera (HCT-00-CV-CA-0033-2009)

The appellants had applied to the trial courts by chamber summons for
summary procedure under 0.36 CPR instead of applying by notice of
motion, the application had been dismissed on appeal.
Justice Bamwine stated that as long as the court had jurisdiction, the
procedure of application did not matter; whether by notice of motion or
chamber summons. Thus held that the trial magistrate had erred in
dismissing the application.
18. Zzimwe Hardware and Construction Enterprises Ltd v Barclays
Bank U Ltd (HCT-00-CC-MA-014-2008)
This was an application to grant an order for unconditional leave to appear
and defend the main suit.
Justice Lameck Mukasa found that the application had triable issues and
so allowed the application. The applicant was ordered to file a WSD within
14 days from date of the ruling.

19. Central Electrical International Ltd V Eastern Builders and

Engineers Ltd (HCT-00-CC-MA-0176-2008)
This was an application by notice of motion brought under order 13 rule 6
of the civil procedures rules and sections 16-29 of the evidence fact where
by the applicant, central electricals international ltd, who is the plaintiff in
civil suit no.43 of 2008 sought orders that; a judgment on admission be

25
entered against the respondent/defendant in favor of the applicant for USD
48,598.79 and also costs be provided for.
The rule enables either party at any stage of the suit to apply for judgment
on the admission which have been made by other party. However, a
judgment on admission is not a matter of right but at the discretion of the
court. If a case involves questions which cannot be conveniently disposed of
on a motion under this rule, the court may in the exercise of its discretion
refuse the motion.
It was found in the instant, the applicant was not aparty to the suit wherein
the alleged admission was made. His lordship thought that the admission
upon which judgment can be based should be made either on the pleading
or otherwise in the suits before court.
In the instant case the admissions upon which the applicant based its
application were not made at any stage of the suit but made in 2005 before
the filing of the suit and in another suit.
The application therefore failed and was dismissed with costs to the
respondent (Justice Lameck Mukasa)

20. Uganda Micro Enterprise Association Ltd & Others V The

Microfinance Support Center (HCMA 125/2005) Before Hon Mr. Justice
Yorokamu Bamwine
This was an application by notice of motion under 0.33 r.3 CPR for orders
that the applicants be granted unconditional leave to appear and defend the
main suit. In this application, all, the three applicants denied indebtness to
the respondent, the issue was the 2nd and 3rd defendants made personal
guarantees to pay the loan and whether the 1st defendant was loaned the
money in question oir whether it merely acted as a convenient channel for

26
the conveying of funds from the a plaintiff to people who are not party to
this case.

Justice Yorokamu Bamwine found that the defense raised by the

applicants is a bonifade one. It raised triable issues basically on the liability
of the 2nd and 3rd defendant as alleged guarantors to the loans and the
accuracy of the plaintiff’s figures as to the amount payable by the 1st
defendant. These matters should go for trial and adjudication.

The application was granted.

20-1 Sterling Travel and Tour Services Ltd V Millennium Travel (supra)

This was an application for unconditional leave to appear and defend the
suit. Court ruled that it is not mandatory to attach a draft WSD to the
application for leave to appear and defend. Thus this did not mean that the
applicant has no defense for the main suit since attaching a WSD to the
application is merely a matter of prudent practice. The prayer sought was
granted.

20-2 Francis Bwengye V Haki Bonera (HCT-00-CV-CA-0033……..

Before J. Yorokamu Bamwine.

At trial before the magistrate, the appellant had filed his application for
leave to appear and defend the suit by chamber summons instead of notice
of motion, his application had been dismissed accordingly.

On appeal, Justice Bamwine observed that much as the correct procedure

for applying for leave to appear and defend is by notice of motion supported
by a valid affidavit, in the interest of justice, as long as the court applied to

27
has jurisdiction, then the application whether made by chamber summons
or by notice of motion has to be entertained.

20-3 Ready Agro Suppliers Ltd & Others v UDB (HCMA NO. 0379 OF
2005) Justice Egonda Ntende

This was an application for leave to appear and defend the suit. It was
brought by notice of motion. There 3 applicants.

It was found that applicant no. 3 did not file an affidavit in support of his
application, thus his application collapsed. The only valid affidavit was that
of the applicant no.2 sworn on behalf of applicant no.1 and no.2.

20-4 Zzimwe hardware & construction ltd v Barclays bank (supra no. 18
above)

In this application for leave to appear and defend, the applicant’s general
manager, Musa Nsimbe deponed an affidavit in support of the grounds of
the application where the applicant admits its debt towards the respondents
but claimed to have partially paid.

It would appear that in the instant, the applicants general manager could
not be in possession of material facts supporting the grounds, nonetheless
court allowed he application for leave to appear and defend the suit.

20-5 Sterling Travel and Tours V Millennium Travel (supra in 11)

Justice Hellen Obura says it is only a matter of prudent practice to attach a

draft WSD to the application for leave to appear and defend the suit it is not
mandatory.

20-6 Acaali Manzi V Nile Bank Ltd

28
This case was cited in the above sterling travel and tour case. In this case,
justice Tsekooko observed that it would be good for the applicant in an
application for leave to appear and defend to attach a WSD (draft) but it not
a mandatory requirement.

20-6 UCB v Mukome Agencies (1982) HCB 22 (supra in no. 29)

It was held inter alia that the fact that the affidavit accompanying the plaint
did not state that there was no defense to the suit but that was stated in a
supplementary affidavit was a mere irregularity which did not vitiate the
affidavit.

20-7 Rwabuganda Godfrey V Bitamisi Namuddu (CACA NO. 23/2009)

The appeal rose from the high court which upheld the land tribunals
exparte decree and judgment made against the appellant on grounds that
he failed to file a defense to the suit yet he had been served.

The COA found that since the appellant had not been validly served with
summons to enable him file his defense, the consequential exparte decree
and judgment of the tribunal that followed was a nullity. The consequential
orders made by the high court were equally a nullity.

The appeal was allowed.

20-8 Southern Investment Ltd V Mukabura Investments Ltd (HCMA NO.

105/2004) Before Hon. Lady Justice M.S Arach-Amoko

This was a notice of motion under 0.33 rr 3 & 4, 0.48 r 1 &3 of the CPR
seeking unconditional leave for the applicant to appear and defend the main
suit.

29
The application was granted, the judge having found that the defendant was
required to produce evidence to impugn the bill of exchange, the basis of the
respondents claim. Such could not be handled under summary procedure
under 0.36.

…. Way of notice of motion under 0.36 r 3 & 4 CPR. There were 3

applicants, applicant no……..had been sued in his personal capacity. The
respondent raised a preliminary point of law to the effect that applicants
no.1 and 3 had not filed applications for leave to appear and defend and
judgment ought to be entered against them.

Straight away, his lordship started with address, this ground by stating the
position of the law to be that where there are numerous defendants wishing
to defend a summary suit under 0.36 CPR, they have each to apply for leave
to appear and defend. And that it would follow from the foregoing that
application for applicant no.3 was not supported by an affidavit as required
by 0.36 r 4 CPR, the only affidavit filed in time in support of the application
was the affidavit of applicant no.2 sworn on behalf of applicant no.1 and
no.2 only.

As applicant no.3 had not done so, nor authorized anyone to do so on his
behalf, the application by applicant no.3 was unsupported by evidence and
was dismissed forthwith.

In this case, the applicants had a joint application for leave to appear and
defend.

Finally, even the application for leave to appear and defend was found not to
have triable issues and therefore dismissed and judgment was entered for
the respondents in the sum claimed in the plaint.

30
21. Century Enterprises Ltd V Greenland Bank (in liquidation) HCT-00-
CC-MA-0916 OF 2004. (ARISING FROM HCT-00-CC-CS-0877-2004)
Before hon. Mr. Justice Yorokamu Bamwine.

This was an application for leave to appear and defend a suit brought under
the current 0.36 of the CPR. The respondent objected on grounds that she
had not been served with the motion as required by 0.5 r1 on service of
summons. That the motion was issued on 8/12/2004 and served on
3/2/2005 which was out of time. It was supposed to be served within 21
days from the date of issue and also there was no application to extend time
within which to effect service of summons. And further, the application had
to be made to court within 15 days from the expiry of the 21 days, showing
sufficient reasons to extend the time within which to serve the notice of
motion. All this was not done.

Nonetheless, invoking the inherent powers of the court under the law, J.
Yorokamu Bamwine granted the applicant/defendant leave to defend the
suit as was prayed. He ordered the statement of defense to be filed within
seven (7) days from the date of the order.

22 Ready Agro Suppliers Ltd & Others v Uganda development bank ltd
(HCT-00-CC-0379-2005) ARISING FROM HCT-00-CC-CS-0186-2005)

This was before Hon Justice Egonda Ntende. It was also an application for
leave to appear and defend the main suit brought by ……

23 Uddham Singh V Ambalal & Company Ltd (1959) 1 EA 67 (HCU)

Before Sir Audley Mc Kisack CJ

THE DEFENDANT/applicant applied for unconditional leave to appear and

defend the main suit which was filed under summary procedure under the

31
current 0.36 CPR. The plaintiff did not oppose the application, and the only
matter in dispute is that of costs.

Sir Audley Mc Kisack CJ agreed with the defendants advocate that, in view
of the correspondence between the parties, the suit ought never to have
been filed under 0.36 CPR and that this defense alone was a triable issue
and granted the defendant unconditional leave to appear and defend the
main suit.

24. Management Committee St. Savior Junior School-Kisubi V

Mugerwa Commercial Agency Ltd (HCMA NO. 183/2004) Arising from
H.C.C.5 NO. 144 OF 2004) Before Hon. Mr. Justice Gideon Tinyinondi

The plaintiff filed a suit under 0.33 (now 0.36) CPR to recover monies
arising out of an oral contract to supply t-shirts of various descriptions to
the defendants.

The applicants/defendants filed an application for leave to defend; in the

affidavit in support the applicants averred that the suit was wrongly
brought under the above order and also that they have a defense to the suit.

The judge allowed the application to defend the main suit and in his own
words on pg 5 of the ruling remarked as follows;

“……this suit is the type that will take

days and is one not suitable to be disposed of under 0.33 (now 0.36 CPR). I
therefore allow the application to defend…..”

25. Twentsche Overseas Trading Co. ltd v Bombay Garage Ltd (1958)1
EA 741 (HCU) Before Sir Audley Mc Kisack CJ

32
The defendant/applicant applied for leave to defend a suit filed under 0.33
(now 0.36) CPR which provides for summary procedure.

The application was filed after the time for leave to appear and defend fixed
by the summons had expired, but before the plaintiffs application for entry
of judgment was received by the court. It was submitted for the plaintiff that
the defendants application was merely for leave to defend and not for
enlargement of time within which to make an application for leave to defend
and was therefore not properly before the court; and that the plaintiff was
entitled to judgment because of 0.33 r.3 (now 0.36 r.3) CPR.

Sir Audley Mc Kisack Cj held that in view of the general power to enlarge
time under 5.99 (of civil procedure ordinance (now 5.98 of CPA ) which is
exercisable retrospectively as well as prospectively and the fact that the
defendants application was filed before the plaintiffs application for
judgment and also of the fact that the defendants affidavit accompanying
the application disclosed a triable issue, the application should be allowed
despite the defendants delay.

26. Kundanlal Restaurant V Devshi & Co. (1952) 19 EACA 77

In the main suit, the plaintiff/respondent sued the defendant/appellant on

a specially endorsed plaint. The res. Co. filed a motion for summary
judgment under order 35 rules 2 and 3.

The appellant made an application for leave to appear and defend , granted,
failed to comply with the condition, judgment was entered for the
plaintiff/respondent a prayed. Thus, the appeal to east African court of
appeal.

Sir Newnham Worley (VP)

33
In the instant case, the appellants affidavit and statement of defense raised
two triable issues namely whether or not there was privity of contract
between the appellant firm and the p/ company and whether or not the
transactions on which the plaintiffs claim was based were tainted with
illegality.

He finds that the appellant’s defense was not shams, they constituted
triable issues and the Supreme Court order set aside. Appeal was allowed
and substituted an order granting the appellant unconditional leave to
defend as to the whole of the respondents claim, with leave to file a fresh
defense within 15 days from the date of the appeal.

27. Maluku Interglobal Trade Agency Ltd V Bank Of Uganda (1983) HCB
63.

This was an application under 0.33 r.4 of the CPR (now 0.36 r.3 CPR) for an
order that the applicant/ defendant be given unconditional leave to appear
and defend a suit in which the respondent/plaintiff claimed against him the
sum of shs. 580,000/= being rent due and for vacant possession of property
.

Held;

Before leave to appear and defend is granted, the defendant must show by
affidavit or otherwise that there is a bonifade triable issue of fact or law.

The defense must be stated with sufficient particularity to appear genuine.

General or vague statements denying liability will not suffice.

0.33 r 2 (now 0.36 r.2) CPR clearly envisages actions and recovery of land,
rent or mesne profits where the relationship of landlord and tenant exists or
had existed as the rights of each of the parties would clearly be spelt out

34
depending on the nature of the tenancy. There would therefore be no
dispute as to the title of the landlord or the amount of rent payable.

In these circumstance summary procedure would provide an ideal quick

remedy of the landlord to recover possession of the property or the rent due.

The applicant/defendant was granted unconditional leave to appear and

defend the suit.

28. Republic Motors Ltd V Atlantic Decorators and General

Constructions (1982) HCB 104

A application was made under 0.6 r. 29 and 0.33 rr 3 &4 (now 0.36 rr 3&
4) CPR for leave to appear and defend a summary suit.

The application was made 3 days outside the prescribed time of 10 days.
The respondent/plaintiff made a preliminary objection that the application
was time-barred. The applicant contended that his application was not
time-barred because it was filed before the affidavit of service was filed. He
further contended that once a defendant appears before the plaintiff moves
the court for judgment or before he takes any other action, the defendants
pleadings are not out of time.

Held;

If a defendant wishes to appear and defend a summary suit he must obtain

the leave of court and he must do so within 10 days of receiving the
summons in a summary suit on a plaint. This is for the essence. This
application was held to be time-barred.

29. Ucb v mukoome agencies (1982) hcb 22

35
The plaintiff filed action against the defendants/appellants under 0.33 (now
0.36) of CPR for summary procedure on specially endorsed plaint. The
defendant applied for the grant of leave to appear and defend the action.
The application was dismissed as no triable issues were found by the judge.
The defendants made a motion for review of the judge’s ruling before the
same judge which was also dismissed, hence this appeal.

Held;

Inter alia

The plaint was properly filed under summary procedure provisions of the
CPR and the plaintiff was entitled to interest from date of judgment until
payment in full after a successful action against the defendant.

2. The fact that the affidavit accompanying the plaint did not state that
there was no defense to the suit but that was stated in a supplementary
affidavit was a mere irregularity which did not vitiate the affidavit.
Forum for filing application for leave to appear

30. Pinnacle Projects Ltd V Business in Motion (supra)

The forum for filing an application for leave to appear and defend the suit
should be in the court where the main suit is. Here counsel for the
applicant had filed the application in civil division of the high court where
the main suit was instituted. By the time of the transfer of the file to the
appropriate forum (commercial division) the application was time barred.
Time for filing
31. UTL v Airtel u ltd (supra)
Time is normally 10 days from the date of service as per appendix to the
rules.

36
As per 0.51 r.4 CPR, the period between 24th of every year and 15th January
of the following year are not included in the computation of the time.
32. Zam Zam & Others V Noel (supra)
The applicant did not apply a leave to appear and defend the suit within the
required 10 days, he applied after one month, in which case he was time-
barred. The application was dismissed.
33. Ready Agro Suppliers ltd v UDB (SUPRA)
There in, Justice Egonda Ntende found that the application for leave to
appear and defend the suit in respect of the 3rd applicant was incompetent
since the application was not accompanied by affidavit in support which
was not filed in time.
34. Pinnacle Projects v Business in Motion (supra) Justice Hellen Obura
By the time the application was transferred from the civil division to the
commercial division where it had been wrongly filed, it was out of time and
thus incompetent.
35. Uganda Telecom (U) Ltd v Airtel (u) ltd (supra)
J. Hellen Obura explained that in computing the 10 days within which to
file an application for leave to appear and defend the suit, 24 th December to
15 January of the following year is not taken into account. Accordingly, the
application was fond to have been filed in time.
Application filed out of time, consequences plus remedy.
37. Pinnacle Projects V Business in Motion Consultants (supra)
The application having been filed out of time and no leave was sought to file
it out of time, Justice Hellen Obura had no option but to dismiss the
application.
38. Zam Zam Noel V Post Bank (supra)
Lady Justice Arach-Amoko dismissed an application to appear and defend
the suit which was filed out of time. The applicant then applied before the
same judge to set aside a default judgment entered against him under 0.36

37
r.11, court ruled that where the application for leave to appear and defend
was dismissed, the only remedy available to the applicant was appeal
against the dismissal order but not filing an application under 0.36 r.11 to
set aside the order made.

39. Venture Communications Ltd V Vertex Prudential (supra)

There in the Justice Kiryabwire granted an order to the applicant for
extension of time within which to file an application for leave to appear and
defend the suit.
40. Musa Sbeity & Another V Akello Joan
The application was for orders that the default judgment and decree entered
against the applicants be granted unconditional leave to defend the main
suit.
Court found that the applicant failed to show a good cause for not filing the
application or leave to appear and defend.
Further still, the affidavit in support of the application was neither signed
nor commissioned. In the result, the application failed.
Conditional leave
3. Tusker mattresses (u) ltd v royal care pharmaceuticals ltd (HCMA
NO. 38/2010 Before Hon. Lady Justice Hellen Obura
The applicant was granted a conditional leave to appear and defend the suit
upon depositing in court ugx 200, million, he failed to comply with the
order. A letter specifying the circumstances for the failure was brought to
the attention of court. Three days prior to the date of the aforesaid letter,
the respondents advocate applied for and obtained judgment and extracted
a decree in H.C.C.S NO. 393 of 2010 under 0.9 r.6 of the CPR.
The applicant there after filed an application seeking for orders to set aside
the default judgment, stay of execution of the decree and for leave to file a
defense out of time. At the hearing of that application, counsel for the

38
applicant applied orally to amend the law under which the motion was
brought which application was heard and denied. That the applicant being
dissatisfied with that decision intended to appeal against it hence this
application for leave to appeal.
Justice Hellen Obura found that the question raised by counsel for the
application is misconceived and even if it is argued before the appellant
court it would be an academic exercise with no reasonable chance of
success.
Finally since the applicant was a sitting tenant in the respondent’s premises
and therefore prolonging resolution of the dispute between them by
entertaining numerous applications and appeals would prejudice the
respondents who has been prevented from enjoying proceeds from the rent.
Thus, the court declined to grant the order for leave to appeal sought by the
application.
The assistant registrar had no jurisdiction to make a decision as the
pecuniary unliquidated demand. After entering the interlocutory judgment,
the case should have been set down for formal proof, albeit in an exparte
manner.
4. The case raises a triable issue regarding the two conflicting amounts
of money due to the plaintiff which is a factor justifying the setting aside of
the judgment and the staying of the execution.
3. UCB V Mukoome Agencies (1982) HCB 22
For the facts and decision and this case, see case no. 29 (supra) on
application for leave to appear and defend.
4. Caltex Oil (U) Ltd V Kyobe (1988-90) HCB 141
This was an application under 0.33.r.11 and 0.48 rr 1,2, & 3 CPR (now 0.36
r.11) seeking orders from this court to set aside a decree passed against the
defendant/applicant, the stay of the execution and to grant the defendant
leave to appear and defend the lead suit. In the grounds the applicant

39
denied indebtness to the respondent, that if the decree is not set aside,
injustice would be caused to the defendant/applicant.
Held;
The court is endowed with wide and discretionary powers to set aside a
decree obtained under 0.33 r.3 (now 0.36 r.3) CPR. However the applicant
had to satisfy court either that there was seeking aside a decree, leave to
appear and defendant setting aside execution & stay of execution (0.36 r.11)

1. Magen Enterprises Ltd v Uganda Breweries Ltd (1992) 5 KALR 109

Before hon. Principal Judge J.H. Ntabgoba.
This was an application to set aside an exparte judgment and decree to stay
execution and to allow the applicant to appear and defend the suit. It was
based on the grounds that due to inadvertence on the part of the personal
secretary to the applicants lawyers never received the corporation secretary,
the applicants lawyers never received the instructions to represent the
application in court though summons to enter appearance had actually
been received, acknowledged and sent to the lawyers by the company
secretary. It was also based on the ground that there was no breach of
contract as alleged in the suit, that the plaintiff would be unjustly enriched
if the matter was undefended and that it would be gross injustice to allow
the decree to be executed. The interlocutory judgment had been entered by
the assistant registrar who thereafter proceeded to make a decision as to
the quantum of unliquidated demand.

Held;
It is possible and proper to apply for setting aside and staying an execution
in one application as long as the application refers to the correct provisions
of the civil procedure rules.

40
… no effective service or he had to show any other good cause sufficient
cause had to relate to the failure by the applicant to take the necessary step
at the right time. There was no hard and fast rule as to what constituted
any other good cause. Each case had to be considered on its own peculiar
circumstances. The applicant’s affidavit in support of the application set out
certain uncontested facts which constituted good cause for setting aside the
decree. However, the plaintiff was entitled to judgment and decree in the
sum admitted.
2. As to whether the defendant/applicant should be granted leave to
defend part of the indebtedness the test to be applied was whether he had
disclosed such facts as might be deemed sufficient to entitle him to defend.
The defense which the applicant was putting forward in this case was that
his indebtedness to the plaintiff was not in the amount claimed in the
plaint. This was not contested. The defendant was therefore entitled to
defend part of the plaintiffs claim which he was disputing.
3. Ssenyange v Naks Limited (1980) HCB 30
This was an application under 0.33 r.11 (now 0.36 r.11 ) & 0.48 r.1 CPR &
s.101 CPA for order that the decree passed exparte against the defendant
be set aside and that the applicant be given unconditional leave to appear
and defend the suit. The plaintiff had instituted the suit against the
applicant under the above orders for recovery of some monies. The applicant
had then filed an application for leave to appear and defend but when the
application came for hearing, neither he nor his counsel appeared and the
application was dismissed. Judgment was entered for the respondent.
Held:
inter alia
1. Before setting aside an exparte judgment the court has to be satisfied
not only that the defendant had some reasonable excuse for failing to
appear , but also that there is merit in the defense to the case.

41
2. In view of the arguments made by the applicant as regards the
defense he had to the plaintiff claim, the instant application showed an
arguable defense which for the purpose of giving leave to enter appearance
and defend the suit was sufficient.
3. Where the applicant has shown a triable issue, he is entitled to be
granted unconditional leave to enter appearance and defend the suit. As the
applicant in the instant application had shown a traible issue on the suit,
he had to be granted unconditional leave to appear and defend the suit
against him.
Application allowed.

5. Ali Ndaula & Another V R.L Jain (HCMA NO. 0624/2008) Before
Hon Justice Lameck. N. Mukasa

This application was brought seeking orders that the judgment or the order
entered against the applicant/1st defendant in the main suit be set aside for
the applicant to be granted unconditional leave to prosecute Misc
application 522 of 2008 for leave to appear and defend the main suit. He
averred that he was interested in prosecuting the applicant and it is his
lawyer that negligently and knowingly refused to attend the hearings.

Court ruled that considering the reasons given by the applicant and his
affidavit which were neither denied nor rebutted, the applicant had good
cause for his failure to personally attend the hearing and he cannot be
condemned for his counsels negligence.

However, it was further found that misc application 522 of 2008 had no
merit to warrant its restatement.

The application was accordingly dismissed with costs to the respondents.

42
5. Kensington Africa Ltd V Pankaj Kumar Shah (HCMA MA NO.
649/2012) Before Hon Lady Justice Hellen Obura
The application was for setting aside an exparte judgment issued under
0.36 r.3 of the CPR, decree as well as its execution and to be allowed to
appear and defend the suit. The grounds were; ineffective service of
summons, that the applicant has a good cause for a grant of leave and
defend the suit.
Her lordship found the affidavit of service defective. It was therefore
irregular to rely on it to enter a default judgment against the application
when there was no proper/ effective service of summons.
Thus, as the first issue was answered in the negative and on that ground
alone the court was inclined to set aside the default judgment, decree and
execution.
Thus the application succeeded.
6. Kingstone Enterprise Ltd & Others V Metropolitan Properties Ltd
(HCMA NO. 314/2012) Before Hon Lady Justice Hellen Obura
This application was brought under order 9 rules 27 & 29 and order 52
rules 1,2 and 3 of the CPR & section 98 of the CPA for orders that exparte
judgment and decree in the main suit (civil suit no. 129 of 2011) be set
aside and also executions proceedings against the applicants in the said
suit be stayed & also the applicants be allowed to appear and defend the
suit on its merits.
The application was dismissed, no evidence was adduced to show why the
applicants 1,2 & 3 had not made applications for leave to appear and
defend the main suit, even service was found to effective .
As such, Justice Hellen Obura could not set aside the exparte judgment and
orders earlier made.
7. Souza Figuerido & Co. Ltd V Moorings Hotel Ltd (1959) 1 EA 425
(CAK)

43
The respondent company had sued the appellant company for shs.
50,199/96 for arrear of rent, interests and costs resulting from the alleged
termination by the appellant company of an agreement between the parties
for the sub-letting of certain premises. The appellant company did not file a
defense but its managing director filed an affidavit in which he denied the
indebtness and set up four defenses. The high court considering the
defenses were tenuous, gave leave to the defend only upon condition that
the appellant company should pay into court the full amount of the claim.
Later, the judge having had his intention drawn to the fact that some doubt
had been casted granted leave to appeal against his order. On appeal the
respondent contended that, despite the general rule that a defendant who
can show by affidavit that there is a bonifade triable issue should have
unconditional leave to defend, an offer made by the appellant company to
pay the amount claimed by the installments was a special fact which
justified the court in granting conditional leave only.
Sir Kenneth O’ Connor P allowed the appeal holding that there were clearly
triable issues and the appellant should have been allowed unconditional
leave to defend and further that it does not follow that because a defendant
offers to pay a sum by installments, he has no legal defense to an action for
recovery of that amount.
Other justices on the panel were Gould and Windham JJA who also agreed
with the orders proposed by Sir Kenneth O’Connor.
8. Uganda Telecom Ltd V Airtel (Ug) Ltd ( HCMA NO. 30/2011)
Before Hon Lady Justice Hellen Obura
A default judgment under 0.36 r.11 CPR had been made in the plaintiffs
favor.
Court found that the registrar ought not to have made the judgment and
decree since the applicant was still within time to file an application for
leave to appear and defend the suit as required by 0.36 r. 3 CPR.

44
The time frame of 10 days within which to file the application had not
expired. The period between 24th of December of every year and 15th day of
January of the following year are excluded in computation of the time.
The default judgment and decree were thus set aside Konoweeka v Daniel
(1976) HCB 222. It was stated that the proper application where a default
judgment had been entered where ………….
Procedure
Francis Bwengye V Haki Bonera (HCT-00-CV-33/2009)
Although the application for setting aside a default judgment under 0.36
r.11 is by notice of motion supported by a valid affidavit, justice Yorokamu
Bamwine held in the instant that application by wrong procedure is only a
mere technicality and that as long as the court applied to has jurisdiction to
entertain the matter, the application will be entertained. In the instant, the
application was filed by chamber summons instead of notice of motion.

12. Ali Ndaula & Another v R.L JAIN (SUPRA)

This was an example of an omni-bus application under 0.36 r.11 CPR.
Following dismissal of their application to appear and defend, the applicant
made another application seeking to set aside the default judgment and
decree plus leave to appear and defend the suit.
Justice Lameck Mukasa found that much as the applicant was prevented
from prosecuting his application due to failure of his lawyer to attend the
hearing, application had no merit to warrant its re-instatement.
Instantly, the application was dismissed,
Important still, on the ground that the suit had been filed in a wrong court,
court found that it had an unlimited original jurisdiction and since the
claim was commercial in nature, it had jurisdiction to entertain it.

13. In Elias Waziri & Others V Opportunity Bank (Supra)

45
Herein the applicant alleged that the court process was not served on the
applicants in the notice of motion but there was no averment to that effect
in the affidavit in support of the application.
Lady Justice Hellen Obura could not hesitate to dismiss the application on
grounds that the applicant failed to satisfy the court that there were any
valid grounds to set aside the default judgment and decree that had been
passed. Such grounds would be for instance deponing in an affidavit in
support of the application that there was no effective service of court
process (summons for instance)

Grounds
1. Musa Sbeity & Another V Akello Joan (supra in case no. 40 under
application for leave to appear and defend.
2. Utl v Airtel (supra)
The ground relied on by the applicants was illegality. That it was illegal and
unlawful for the learned registrar to enter a default judgment and decree
when there was an application filed in time for leave to appear and defend
the main suit. Court set aside the default judgment and decree that had
been wrongly entered

3. Meddie Dembe V Nalongo Namusisi ( HCMA N

O. 35/2002)
Justice Arach-Amoko herein dismissed the application because the
applicant failed to satisfy court that he was not served with summons.
Bigways Construction Ltd V Trentyre U Ltd (HCMA NO. 0832/2005) J
Yorokamu Bamwine

46
Here in a default judgment and decree had been made in the respondents
favor who went further to attach and sold the applicants property.

The application to set aside the exparte judgment which had been made, set
aside the execution decree in the said suit and grant the applicant leave to
appear and defend the suit was dismissed since there was even no grounds
for the leave to appear and defend as the said affidavit in support of the
application was found to be full of falsehoods.

4. Sterling Travel V Millennium Tours & Travel (Supra)Herein, Justice

Hellen Obura referring to an earlier decision by justice Tsekooko noted that
much as it is prudent practice to attach a draft WSD to the application, this
is not a mandatory requirement

TESTS AND THRESHOLD

1. NBS Tv v UBC (HCMA NO. 421 OF 2012) Before Lady Justice

Hellen Obura
This was an application for the orders that a third party notice issue to the
respondent as a necessary party to the suit for purposes of indemnifying or
otherwise contributing to liability that may be imposed on the applicant
arising from a suit between Supersport International (PT) LTD and the
applicant in the event that judgment is entered against the applicant in that
suit.
Court granted leave to the applicant to issue a third party notice to the
respondent after considering the law and the circumtances.
2. Kensington Africa Ltd V Pankaj Kumar Shah (supra in no 06)

47
Justice Hellen Obura set aside an exparte judgment which had been made
together with the decree because the affidavit of service was defective and
also that the applicant had a good cause for granting of leave to appear and
defend the suit.
3. UCB v Mukoome agencies (1982) HCB 22(supra in no. 29 an
application for leave to appear and defend)
Life insurance corporation of India v Panesar (1967)1 EA 614 (CAN)
Before Sir Charles Newbeld P, sir clement and spry JA
The defendant in a summary suit brought against him claimed to have a
good defense and thus filed an affidavit sworn by its divisional manager.
The affidavit expressly stated that the policies provided for payment in
rupees in India and not payment in Kenya currency. The policies themselves
were not however, exhibited to the affidavit. The judge who heard the
application ordered that the defendant should have unconditional leave to
defend but entered judgment on an alleged admission for part of the claim.
In a cross appeal by the plaintiff arguing inter alia that the defendants
affidavit did not disclose triable issues and also that the affidavit was
inadmissible as offending against the best Evidence Rule Because The
Policies Themselves Were Not Exhibited.
Sir Clement De Lestang Vp in his lead judgment held that unless otherwise
provided for in a written law, the rules of evidence do not apply to affidavits.
Thus the best evidence rule does not apply to affidavits.
To the court, as long as the source of information was disclosed, the
affidavit was proper. Finally, the defendant affidavit was not found to be
inadmissible merely because of the mission to exhibit the documents.

4. Caspair Ltd Gandy (1962) I EA 414 (CAK) Before Sir Ronald

Sindair P Sir Alastair Forbes VP and Sir Trevor.

48
The respondent sued the appellant claiming an account of the income of a
shop and commission on the sales. Judgment in default of appearance was
entered exparte but subsequently it was set aside. The respondents
advocate then applied for the issue of a commission or letter of request for
the examination and cross examination of the respondents at Bota in the
south Cameroons where he was employed. The application was supported
by the firm representing the respondent had left east Africa before exparte
judgment had been set aside and that he was prevented by his duties and
the expense involved from coming to Uganda to give evidence. The judge
granted the application on the grounds that there were exceptional
circumstance disclosed in the affidavit and some doubt whether the
respondents employer would consent to his absenting himself from work.
On appeal;
Held;
It was found that the affidavit did not state the deponents means of
knowledge of or the grounds of his belief in the matters set out in the
affidavit nor did it distinguish between matters stated on information;
moreover the assertions regarding the expanse and respondents duties were
bare assertions not based on any alleged facts.

TOPIC 2: AFFIDAVITS

Meaning of affidavits, types of affidavits, filing of affidavit and legal

consequences of non-compliance.

Kakooza Jonathan & Another V Kasaala Co-Operative Society Ltd

(SCCA NO. 13/2011)

49
The application of the Supreme Court was for orders that Kasaala Growers
Co-Operative Society, the respondent furnishes security for past costs
relating to certain suits. The application was brought under rule 101(3) and
42 of the Supreme Court rules.

In the process, the applicant raised preliminary points of law as to the

competence of several of the respondents affidavits, such as the affidavits in
reply that; that the affidavits in reply had not stated that the respondent
has any assets as was denied by the applicants affidavit in reply by the
respondent is argumentative and full of falsehoods. That the deponent, a
one Bumba Kali Sande had stated that he is a female adult of sound yet he
was a male adult that in all these, the affidavit in reply should be struck
out.

Ruling of the court on that issue

The court took time to first address the issue on the competence of the
affidavit and ruled as follows; the court did not agree that the affidavit in
reply was argumentative –these were his statements of belief; where
Bumbakali Sande described himself as a female adult Ugandan where as he
is a male Bumbakali Sande swore a supplementary affidavit stating that he
is a male adult and that the word female in his affidavit in reply was an
inadvertent typing error. This was remedied and thus the affidavit in reply
was proper and there was no good reason to strike it out.

Kakkoza John Baptist v Electoral Commission & Another (SC EPA

NO.11/2007)

This was an election petition appeal from the court of appeal from the court
of appeal and the Supreme Court and COA’s rejection of evidence of the
appellant such as affidavit in rejoined as incredible evidence.

50
The court took time for consideration and observed;

“ ….rules that apply to affidavits evidence do not necessarily apply to

annexures to those affidavits. The reason for this view is that the
affidavit contains the facts which the deponent swears to be true
because he or she has personal knowledge of them. This cannot
always be true of annexures to affidavits.”

The Supreme Court affirmed the COA’s findings when it rejected the
affidavit in rejoinder since it was not made on oath as required by the oaths
act and the deponent had not sworn it thus undermining the importance of
affidavit evidence. (GW Kanyeihamba, JSC)

C. Kakande Kenneth Paul V Ruhindi Fred & Another (Election Petition

N0. 7 of 2006) Before hon. Mr. Justice Eldad Mwangusya.

This was an election petition against the election of Mr. Fred Ruhindi as MP
for Nakawa. The court had ordered the petitioners to file and serve affidavits
within a stated period. Having failed to do so, the court rejected the
affidavits.

The petitioner had to file his affidavits in support of the petition on

1/8/2006 and serve by 2/8/2006 at 5pm, he however served the 1st
respondent on 3/8/2006 at 1:16pm and the 2nd respondent was served at
3:00pm.

Both services were outside the time stipulated by court. It was immaterial
that service was outside the stipulated time by few hours. In such
circumstances the petitioner should have applied to court for expansion of
the time instead of trying to force” service on the respondents.

51
Thus, the court ruled that the purported service of the affidavits on the two
respondents was not proper and the fate of those affidavits is that they
would not be admitted. They were excluded from the record of the petition.

D. Uganda Microfinance Union Ltd V Sebuufu Richard & Another (HCT-

00-CC-MA-0610-2007 Before Hon. Mr. Justice Lameck N. Mukasa

This application was brought by notice of motion under 0.9 r.23 & 0.2 r.1
CPR for orders that the dismissed order in the main suit be set aside and
the costs of the application be provided for.

The suit had been dismissed for want of prosecution. The applicant alleged
that she had not been informed of the hearing date; that being a corporate
entity, it had to act through its officers or lawyers but that their former
lawyers (Mukwatanise & Co. advocates) had not informed them of the
hearing date. Shinobu Musoke & Co. advocates who had come on board as
the new lawyers for the applicant proceeded with the application. A one Mr.
Sebuliba in the affidavit deponed that he was an advocate with the
applicants lawyers (Shinobu & co. advocates) and that to the best of his
knowledge, on the day of dismissal of the suit, the former lawyers did not
inform the applicant of the hearing date.

J. Lameck N. Mukasa dismissed this affidavit for being incompetent, that

mr. Sebuliba was not competent to make an averment with regard to the
fact that the applicant was not informed of the hearing date as he was not
in position to receive that information. A false affidavit will fail.

An affidavit should contain information within the personal knowledge of

the deponent.

52
E. Odongkara & Ors V Kamanda & Another (1968) 1 EA 210 (HCU)
Before Sheridah J

The plaintiff sued a Muluka chief and also the Busoga government. By a
notice of motion unsupported by affidavit, the plaintiffs applied to amend
the plaint by substituting the Busoga district administration “pursuant to
the provisions of the constitution of the republic of Uganda, 1967”

Sheridah J agreed with the applicants counsel that no affidavit was

necessary in this case as there was no question of evidence as it was purely
a matter of law.

However, his lordship observed further that the notice of motion should
have specified that the busoga government had ceased to exist and further
that the notice of motion was deficient in that it merely sought to amend the
plaint.

In the result, the application was dismissed with costs.

F. re: Lokana Okoth (1975) HCB 204 the applicant applied under the estate
of missing persons (management decree (decree 20/73) for the management
of the estate for Okoth Lokana. Later the respondent who had made the
same application lodged a memorandum of objection under S.5(c) & (d) of
the decree objecting to the grant of the order to the applicant.

The applicant by notice of motion accompanied by an affidavit applied for an

order to strike out the memorandum of objection. The affidavit was not
sworn before a commissioner for oaths and not signed. At the hearing of the
application the respondent raised objections as to the competence of the
application and also thereby the affidavit.

Held;

53
The procedure taken by the applicant to apply by notice of motion to strike
out the memorandum of objection was incorrect and improper and not
provided for under the decree or any other enactment. The proper procedure
was to fix a date for the hearing of the objection.

The affidavit purported to accompany the notice of motion was not in law an
affidavit as it was not sworn before a commissioner for oaths. And although
0.48 of the CPR does not make it mandatory that a notice of motion be
accompanied by an affidavit, once it is accompanied, it must conform to the
established practice.

Namirembe v Kizito (1973) EA 41 Before Saied J

The plaintiff applied by originating summons for relief against the execution
of a will alleging willful default among other allegations.

A hearing notice but not the summons itself was served on the defendant.

Court found that the plaintiff had only served the hearing notice but not the
summons as there was no affidavit of service. Had the copy of the
originating summons and the affidavit been attached to the hearing notice
which was to be served then it would be effective service. Accordingly the
defendant had not been properly served.

On the objection as to the plaintiffs affidavit, court found that the affidavit
was deficient because it did not set out the deponents means of knowledge
or her grounds of belief regarding the matters stated on information and
belief, and it did not distinguish between matters stated on information and
belief and matters deposed of to form the deponents knowledge.

54
 Pemchand Raichand v quarry services (1969) EA 514 at 516 had earlier
held that these fundamentals requirements are not merely a matter for
form, but goes to the essential value of the affidavit.

The application was dismissed.

FILING OF AFFIDAVITS AND CONSEQUENCES OF FAILURE.

1. Stop and See (U) Ltd v Tropical Africa Bank (supra)

Justice Madrama held an affidavit in reply which had been filed in about 5
months unlike 15 days required of the rules to be incompetent and
therefore could not be relied on by the respondent.

2. Elias Waziri & 2 others v Opportunity Bank (U) Ltd (supra under sub-
topic “opposing application for leave”) See no. 2 case

Herein, her lordship adopting the dictum of Lord Madrama in stop and sees
supra found that in the instant an affidavit in reply which had been filed in
4 months instead of 15 days was out of time and therefore incompetent.
Nonetheless, she exercised the inherent powers of the court to extend the
time for filing the affidavit in reply.

3. Ready agro suppliers v Uganda development bank (supra under sub

topic “application of leave to appear and defend”)

Herein, Justice Egonda Ntende dismissed an application for leave to appear

and defend the suit in respect of application no. 3 who did not file an
affidavit in support of his application.

4. Sebyala Kiwanuka V Sendi Edward(supra in no. 1 under opposing

application for leave)

55
 in this 2014 case, lady justice Flavia Senoga held that much as the affidavit
in reply was filed out of time, nonetheless since it was filed before the
hearing it was valid.

TYPES OF AFFIDAVITS

AFFIDAVIT IN SUPPORT

1. Ready agro suppliers ltd & others v UDB (HCMA-supra under

application for leave to appear and defend)

Justice Egonda Ntende found that the applicant no.3 had not filed an
affidavit in support of his application, thus his application collapsed. He
had filed it after the 10 days required.

Affidavit in reply

2. Southern investment ltd v Mukabura investment (supra in no.06 under

sub-topic “opposing application for leave to appear and defend”

The mere fact that the other party has not deponde an affidavit in reply does
not mean that they admit the contents of the affidavit in support. In any
case, the affidavit in reply is filed as of right and there is no need to apply
for leave to file it.

Affidavit in rejoinder

3. Jane Lugolobi And Others V Gerald Segirinya (HCMA NO. 371/2001)

Supplementary Affidavit
4. Samuel Mayanja V URA (HCT-00-CC-MC-0017-2005) J Egonda Ntende
In the course of the proceedings, the applicant kept on filing more affidavits
without leave of court. On objections, by the respondents to these affidavits,
his lordship observed that where the applicant wants to file a further

56
 affidavits, he ought to seek the leave of court, otherwise the proceedings
may turn simply into an unregulated game of “ping pong”.
The affidavits were rejected.
5. Kakooza Jonathan And Another V Kasala Growers (supra on nola on
affidavit)
The affidavit filed a supplementary affidavit to correct a typographical error
in the initial affidavit and court held this to be okay. However, had the
initial affidavit been struck out the supplementary affidavit would have
collapsed as well.
6. See also Jayanth Amratlal and Another V Prime Finance Co. Ltd (HCT-
CC-MA-225-2008)(Supra)
Relevant legal provisions and affidavit, procedure and practice and
applicability of article 126 (2)(e)
1. Bance Arabe Espanol v BOU (SCCA NO. 8/1998)
The trial court had dismissed the appellant’s suit for failure to furnish
security for costs or required by the law.
The same court later re-instated the suit upon a successful application by
the appellant showing sufficient cause for not depositing security for costs.
On appeal, the COA had overturned the trial judge’s orders and decree.
On further appeal to the Supreme Court, the trial decision had been re-
affirmed.
Other issues in this case also involved the affidavit in support of the
application by the appellant to re-instate the suit annexed to a document
not commissioned by the commissioner for oaths as required by law.
In applying article 126(2)e), constitution, the law lord found that it was not
fatal to the case and did not prejudice the respondents interest.
Thus, the grounds and affidavit evidence on which the learned trial judge
exercised his discretion in favor of the appellant were justified.

57
2. All sisters company ltd v Guangzhou tiger head and another (HCMA NO.
307/2011) Before Hon. Mr. Justice Christopher Madrama
The application was for orders that a consent judgment between the
plaintiff, 1st defendant and second defendant in HCCS NO. 128/2010 BE
SET aside and costs of the application. The respondent had raised
objections to competence of the application.
That in the application it was averred that the person who signed the
consent judgment was not authorized by the company to do so. That this
requires the kind of evidence in an ordinary suit where witnessed can be
cross examined and not affidavit evidence.
In overruling the objection by the respondent with costs, J Madrama
referred to a number of authorities and article 126(2)€ of the constitution to
the effect that an application to set aside a consent judgment may be made
by notice of motion for review or it may be made by plaint and a wrong
citation or failure to cite the correct rule so long as it did not go to
jurisdiction or occasion a miscarriage of justice, to the opposite side did not
make an application incompetent.
3. Thornhill v Thornhill (1965)EA 268
This was a divorce petition, in which the petitioner later applied under the
CPR (then 0.17 r.1) for an order that the evidence of a witness who had
obtained a confession statement from the respondent be given an affidavit
to save the cost and inconvenience involved in bringing the witness to
Uganda from the United Kingdom.
The judge dismissed the application on the ground inter alia that leave to
adduce evidence by affidavit should be given as an exceptional indulgence
in special circumstances.
In this view the cost and inconvenience of bringing a witness from United
Kingdom would not be “very great” and was not sufficient ground for
allowing proof of adultery by affidavit.

58
4. Mulowooza & Brothers Ltd V N. Shah & Co Ltd (SCCA NO. 20/2010)
The lead judgment was delivered by Tumwesigye, JSC. The appeal was for
an order setting aside the COA’s judgment and reinstating the orders of the
high court disallowing the respondent’s application to amend its plaint to
substitute attorney general for the commissioner for land registration.
Among other issues was dispute as to the annexure to the affidavit of the
respondent in his application for leave to be allowed to amend the pliant.
His lordship agreed that annexures are part of the affidavit and if the
appellant disputed this, it should have proved it by producing contrary
evidence, and this was not done, thus contents of documents attached to an
affidavit are part of the affidavit.
In the result, his lordship found that no injustice will be caused to the
appellant in the amendment is allowed.
The appeal was dismissed, with costs.
5. Kasaala Growers Co-Op Society V Kalemeraedson & Jonathan Kakooza
(SCCA NO. 24/2010) Ruling of Tsekooko , JSC
The application was brought by notice of motion seeking for leave to file
memorandum and record of appeal out of time. The background is that the
applicant had engaged two successive lawyers to institute the appeal in
vain. The present application, Mumbakali, an agent of the applicant averred
that failure to institute the appeal in time was blamed upon the refusal by
the applicants former lawyers. The 2nd respondent challenged competence of
Mumbakalis affidavit in his affidavit in reply by alleging that the affidavit is
false since it was deponed by Mumbakali who was illiterate and that it was
not signed. One of the former lawyers of the applicant Tibaijuka swore an
affidavit claiming that it is not the applicant that withdrew instructions
from him but that it is him that advised the applicant to look for another
advocate since Mumbakali, the applicants agent did not listen to his advice.
In the result the respondent.

59
 In the circumstances, his lordship, J.Tsekooko applying art 126(2)(e) of the
constitution, he exercised his discretion and granted the application.
He found that the affidavit of Mumbakali was properly sworn before a
commissioner for oaths and that some paragraph for the power of attorney
appears to have granted Mr. Bumbakalu, the necessary authority to
institute proceedings on behalf of the applicant.
However, the applicant was directed to meet the respondents costs in the
application.
6. Nelson Sande Ndunge v electoral commission (HCT-01-CV-EP-004 OF
2006) Before hon. Mr. Justice Rugadya Atwoki
This was an appeal by way of a petition from the decision of the electoral
commission where by the petitioner was disqualified from election of LCIII
chairperson Kasese town council. In the process, the objection was raised
by the petitioners counsel as to the competence of the respondent’s affidavit
in reply, that it was filed out of time and ought to be dismissed.
In this case, the respondent did not file the affidavit till 5 days after the
expiry of the time limit. The time limit was only 3 days. A delay of 5 days
was considered not a short one.
There were no reasons advanced for the delay or failure to file in time. Court
could not exercise its discretion in a vacuum.
To grant the application to file the affidavit out of time in these
circumstances would invariably cause injustice to the petitioner.
Accordingly, the preliminary objection was upheld and the decision of the
respondent in which the petitioner was disqualified as a candidate for the
election of chairperson of Kasese town council was set aside.
7. Premchand Rainchand v Quarry Services Ltd (1960) EA 517
In this case, court held that the fundamental requirements that a deponent
states the means of knowledge and beliefs is not merely a matter of form ,
but goes to the essential value of the affidavit.

60
8. Rtd Lt Saleh Kamba & Others V AG, Hon Sekikubo and others
(Const.Applications no. 14/16 of 2013)
In this case, NRM party had expelled some of its members and sought the
speaker of parliament to evict them from parliament. The president had
deponed an affidavit.
On application by the applicants to cross examine the deponent, court
refused on grounds that the applicants had not notified court on specifically
what they wanted to cross-examine the deponent about.
9. Mugema peter v mudiobole abedi Nasser (EPA NO. 330/2011) Judgment
of Remmy Kasule
This was an election petition appeal against annulling the appellants as MP
for Iganga municipality.
The appellant contended that the trial judge had relied on affidavits which
had not been commissioned, court fees not paid on them and that there was
no certificate of translation since the deponents were illiterates.
The commissioner for oaths, Oluge Richard, who handled the affidavits gave
evidence that he saw a number of receipts of payment of fees on these
affidavits, and that though not bearing certificates of translation, the
contents in the affidavits were first translated into Lusoga before the
deponent signed.
He also administered an oath/affirmation to each deponent before signing.
Court believed in such evidence and concluded that the rest o the
complaints such as lack of a jural or certificates of translations are
procedural transgressions and cannot prevent the court from administering
substantive justice (as per J. Reemy Kasule)
Therefore, the affidavits in question constituted valid evidence and the trial
judge was right to rely on those affidavits that he chose to rely on to reach
the conclusions that he arrived at.

61
 DATE AND PLACE OF DEPONING AN AFFIDAVIT AND EFFECT ON NON-
COMPLIANCE
1. Engineer Yorokamu Katwire V Elija Mushemeza (1997) II KALR 66
The application was for review under 0.42 r.1(1)(a) and (b) CPR of an earlier
high court’s decision. In reply to the application, counsel for the respondent
argued that the application was incompetent because it was accompanied
by an affidavit deponed to earlier that the notice of motion it was intended
to support.
Held;
where the (notice of motion) application and its accompanying affidavit bear
different dates, it does not vitiate the application when the application and
affidavit are filed in court on the same day.
2. Kakooza John Baptist v Electoral Commission (supra in (B)
In this judgment, Justice Kanyeihamba at the Supreme Court rejected the
appellant’s affidavit in rejoinder because it was not sworn and made as
required by the oaths Act.
3. Mbayo Jacob Robert v Electoral Commission And Another (CA EPA NO.
07/2006) Judgment of Byamugisha

This was an appeal against the judgment of the high court of Uganda sitting
at Mbale. The appellant contested the election of the 2nd respondent and
that the 1st respondent did not conduct the election in accordance with the
law.

The appellant had evidence presented, some of which were in 14 affidavits.

The trial court dismissed his petition, holding that his affidavits were full of
contradictions and contravened s.6 of the oaths Act. On appeal to the court
of appeal;

62
 In her judgment, C.K.Byamugisha on the issue of competence of the
affidavits she held as follows; (pg 8)

“……….my understanding of the provisions of this

section (s.6 oaths act)is that the commissioner for oaths or notary public
before whom any oath or affidavit is taken has to state in the jural or
attestation the place and the date the oath or affidavit is taken…”

Her lordship continued and followed the decision in Kiiza Besigye V Yk

Museveni and another where courts were called up on to adopt a literal
approach when considering defective affidavits in election petitions that
affidavits are very important. She blamed the trail judge for adopting a strict
view of affidavits. That much as the commissioner for oaths address was
Nakivubo, it was possible to carry the stamp to Mbale where the affidavits
were sworn/affirmed.

In the result, the affidavits were found to satisfy the essential requirements
of s.6 of oaths act and therefore not incompetent.

4. Paul Mwiru V Hon. Igeme Nathan Nabeta And Others (EPA NO. 6/11)
Judgment of Byamugisha, JA
This was an appeal against dismissal of an election petition.
His lordship found that the 1st respondent personally committed an illegal
act of bribery and his election as MP for Jinja east constituency was
annulled.
Among others, in as far as affidavits evidence is concerned, it was found
that the respondents affidavit did not comply with the Oaths Act.
5. Hon. Theodore Sekikubo and Others V Rtd (Lt) Saleh Kamba (2013)
supra.

63
 FALSEHOODS IN AFFIDAVITS

1. Jetha Brothers Ltd V Mbarara Municipal Council And 4 Others (HCMA

NO. 31/2004) Before Hon. Mr. Justice P.K Mugamba
This was an application by the plaintiff to amend the plaint. The defendant
objected that, inter alia the application is incompetent by reason of being
supported by a defective affidavit and that as such the application should
be struck out.
His lordship found that the affidavit in support of the application contained
a falsehood on paragraph 8when it stated that the applicant was not aware
that the respondent was registered as a proprietor of the suit and had
obtained a certificate of title that such knowledge was gained after receipt of
the WSD.
In the result, the application was stuck out with the costs, for containing an
affidavit full of falsehoods. This case relied on the cases of Bitaitana V
Kananura (1977) HCB 34
2. Uganda Micro Finance Union V Sebuufu Richard And Another
(HCT-OO-CC-MA-0610-2007)
This was an application brought by notice of motion under 0.9r. 23 and 0.2
r.1 CPR for orders that the dismissed order in civil suit no. 901 of 2004 be
set aside. The suit had been dismissed for want of persecution. The affidavit
in support of the application was sworn by an advocate of the firm acting for
the applicant in which he averred that the suit was dismissed for want of
prosecution that the applicant was not informed by their former lawyers
(M/S Mukwatanise and Co. advocates) that the case was coming up for
hearing, that the applicant is still interested in pursuing the case further
and in paragraph 9 of the affidavit, the deponent stated that whatever was
stated was true and correct to the best of his knowledge.

64
It was found that the affidavit in support of the application was full of
falsehood. It was a lie for the deponent (Mr. Sebuliba) to state that to the
best of his knowledge that the applicants former lawyers had not informed
the applicant of the hearing date. The situation would have been different
had he been the internal lawyer or legal officer of the applicant.
His lordship wondered why Mr. Sebuliba chose to swear the affidavit instead
of an officer of the applicant company. The affidavit was struck off.
However, in the interest of justice, the dismissal order in civil suit no. 901 of
2004 was set aside and the suit re-instated for hearing inter parties.

3. Pinnacle Projects Ltd v Business in Motion Consultation Ltd

(HCMA NO. 362/2010) Before Lady Justice Hellen Obura
The application was brought by notice of motion under 0.36 r.11 CPR for
orders that the decree passed at the main suit (HCCS NO. 182 OF 2010) be
set aside and cost of the application be provided for. The respondents
counsel challenged the validity of the affidavit in support of the application.
Particularly paragraph 3 of the affidavit of Mr. Peter Mugimba sworn on
behalf of the applicant in which contentedly contained falsehood in so far as
the deponent stated that misc. Appl no. 231 of 2010 was filed in the court
on 7/6/2010 thus contradicting the content of a letter that was written by
counsel for the applicant to the registrar civil division dated 16/6/2010.
However, Justice Hellen Obura did not find any falsehood in the affidavit as
alleged by counsel for the respondents. The deponent stated the fact that
the firm filed application no. 231 of 2010 without specifying the division or
court where it was filed. This was not falsehood and her lordship declined to
struck out the affidavit.

65
4. Kakooza Jonathan And Another V Kasaala Growers Co-op Society
(SCCA NO. 13/2011)
Applicant raised preliminary points of law as to the competence of several of
the respondents affidavits like the affidavit in reply for containing falsehood-
not stating that the respondent has any assets, also that the deponent
stated that he is a female adult of sound mind yet he was a male adult.
The court ruled however that a supplementary affidavit which was sworn by
the deponent clearly stated that the deponent is a male adult and that the
word “female” in his affidavit in reply was an inadvertent typing error. This
was remedied and it cannot be said that it contained any falsehood and
there was no good reason to strike it out.

5. Meddie Ddembe Maji Marefu V Nalongo Namusisi

(HCMA NO. 35/2002) Before Hon. Lady Justice M.S Arach-Amoko.
This application was brought under the then 0.33 r. 3,4 and 11 and 0.48
r.1 CPR for orders that the judgment and decree in C.S no. 709/99 be set
aside any pending execution be stayed, the applicant be given unconditional
leave to appear and defend, the applicant be released from civil prison and
costs of the application be provided for.
It was found by the judge that the applicant’s affidavit was full of falsehood
and could not be ignored, and the application failed for only that reason.
The falsehood therein was that he was not aware of the suit against him
until the 14/6/2000, he denied any knowledge about the debt.

6. Bitaitima Silas v Kananura (1977) HCB 34

In this case, it was held;
The inconsistences in affidavits cannot be ignored however minor since a
sworn affidavit is not a document to be treated lightly. If it contains an
obvious falsehood then it naturally became suspect.

66
An application supported by a false affidavit is bound to fail because the
applicant in such a case does not come to court with clean hands.
Affidavits deponed by advocates
1. Jayanth Amratlal Bhimji and Another Prime Finance Co. Ltd
(HCT-00-CC-MA-225-2005) Before Mr. Justice Lameck Mukasa.
This was an application seeking to set aside judgment and decree, set wide
execution of the decree and the applicant to be granted leave to appear and
defend the suit.
The grounds being that mistake of former lawyers who wrongly prosecuted
the application for leave to appear and defend should not be listed on the
innocent litigant/applicant who was out of the country.
In the dismissed application, one of the lawyers of the firm representing the
applicant had deponed an affidavit in support of the application contrary to
the provisions of regulation 9 of the advocates (professional conduct).
Regulations 1971 and thus incurably defective. The applicant had deponed
a supplementary affidavit. In the circumstances the supplementary affidavit
had nothing to supplement there by rendering the application unsupported
by any affidavit. It was thus dismissed and judgment and decree entered.
In the instant application, his lordship deemed it just to grant the
applicants prayers since mistake of counsel should not be visited on an
innocent litigant.
The principle is that lawyers should not depone affidavits on behalf of their
clients.

67
 Annexures to affidavits
1. Lugazi Progressive School and another v Serunjoji and 4 others
( HCMA NO. 0050 OF 2000) Before hon. Mr. Justice V.F. Musoke
Kibuuka
The application filed was seeking a revisional order setting aside a judgment
and orders against the applicants.
The respondent raised objection that the annexures attached to the affidavit
was valid, and then the wrongly attached to the affidavit in support of the
application was not verified by the commissioner for oaths as per 5 r.8 of
the commissioner for oaths rules. That accordingly both the affidavit in
support and subsequently the application should collapse.
Court declined to up hold the objection on grounds that since the affidavit
was valid, then the wrongly attached annexures could be detached. In any
case, a distinction should be drawn between “exhibits” and “annexures”. R-
8 of the above rules referred to exhibits and not annexures. The objection
was overruled argumentative prolix and affidavits constituted by irrelevant
subject matter. Hearsay in affidavits.
1. Assanand and Sons (Uganda) ltd v E.A Records Ltd
(1959) 1 EA 360 (CAN) Before Sir Kenneth O’Connor p, Forbes v-p and
Windham JA
The respondent sued the appellant, which had its registered office in
Kampala, Uganda and a leave to serve summons outside the jurisdiction
was granted by the court. The affidavit supporting the application for service
outside the jurisdiction stated inter alia that the action was for goods sold
and delivered by the respondent to the appellant and that the payment of
the account was to be made at Nairobi within the jurisdiction of the court.
On objection as to the competence of the respondents, affidavit, it was
found

68
The affidavit was found to be deficient in that it did not set out the
deponents means of knowledge or his grounds of belief regarding the
matters stated on information and belief and also the affidavit did not
distinguish between matters stated on information and belief and matters
diposed to from the deponents knowledge and lastly the assertion that
payment of the account was to be made at Nairobi was a bare assertion not
based on any alleged facts.
The appeal was allowed and the appellant was granted leave to enter
appearance and file his defense.

OTHER RELEVANT AUTHORITIES ON AFFIDAVITS

1. Auto Garage v Motokov (1971) EA 514

In an action on bills of exchange the judge ruled that the plaint disclosed no
cause of action and the respondent there upon applied to amend the plaint
to claim in the alternative and the goods sold and delivered to the first
appellant in respect of which the bills of exchange were given. The appellant
opposed the application on the grounds that the court had no power to
amend a plaint which disclosed no cause of action and if there was a power
to amend, it should not be exercised so as to introduce a new cause of
action after the expiry of the period of limitation.

The judge allowed the application, holding that the court had power to allow
amendments to a plaint disclosing no cause of action and that no new
cause of action was introduced.

The appellant appealed and the respondent cross appealed against the
finding that the plaint disclosed no cause of action.

69
The appeal was allowed, the ruling and order in the high court were set
aside and an order was made rejecting the plaint as disclosing no cause of
action and the application for amendment was dismissed.

2. Bombay Flour Mill v Patel (1962) 1 EA 803 HCT Before Sir Ralph
Windham CJ

The respondent filed a summary suit in a district court upon a promissory

note made by the appellant firm in favor of the second defendants.

The respondent claimed to be the holder in due course of this note. The
appellant firm applied for unconditional leave to appear and defend the suit
supporting the application by an affidavit of one of its partners which, inter
alia, alleged fraud. The magistrate dismissed the application on the ground
that the affidavit did not state the deponent’s means of knowledge or his
sources of information and belief, and on the next day judgment was
formally entered against the appellant firm. Subsequently, the appellant
appended against the ruling and the hearing of this appeal the respondent
took the preliminary points that no appeal lay from a ruling upon an
application.

The respondent also contended that the affidavit was deficient, the
deponents means of knowledge or his sources of information or his sources
of information and belief are not stated and also that the affidavits were
vague and ambiguous.

In the result, the affidavits were held to be incompetent and that the
application cannot be granted on the strength of it.

The appeal was accordingly dismissed.

TOPIC THREE

70
 JUDGEMENTS. MEE

1. Caroline Mboijang ORS V James Mboijana (SCCA No 3/2004)

The supreme copyright was faced with a situation in which the validity of a
judgment made at the trial was disputed by the respondents. The
respondent contended that no valid judgment had been made by the late
trial judge, late Ignatyiius Mukanzi the appellants on the other hand argued
that the judgment was signed, dated there was a draft of the original and
that only a typed but not signed judgment was exhibited.

However to the Supreme Court, there was overwhelming evidence proving

that in civil suit No 845 of 1996 (trial court) the learned trial judge
competed the case and write the judgment and delivered. Counsels were
summoned to receive it and it was read in court on 19th/ Oct/ 1999.

The court therefore found that the justice of the court of appeal and in law
and fact in failing to properly evaluate the evidence when they concluded
that there was no judgment delivered by the learned trial judge in that case.

The appeal was allowed.

2. Amrit Goyal V Harichand Goyal 3 Others

When the application comes for hearing, the applicants counsel objected
that the 1st respondent had passed on that court makes an order staying
the application, pending the substitution of the deceased’s legal
representative.

The respondents counsel opposed the objection or observation arguing that

for him he got instructions to oppose the application from the deceased
prior to his death. That as far as he was concerned, any legal representative

71
of the deceased would not give instructions contrary to these given by the
deceased before he died.

The CoA ruled that it was essential for counsel for the respondent to obtain
instructions from the legal representative of the deceased as required by the
provisions of rule 96 of the rules of that court.

Further, it was reckoned by the court that it would be inconceivable for

counsel to continue relying on instruction of a deceased person to conduct
the proceedings before court.

In the result, the objection or observation was up held. The hearing of the
application was stayed pending the substitution of the deceased’s legal
representative

3. Orient Bank Ltd V Fredrick Zaabwe Another (SCCA No 17/2007).

In the application, the applicant Bank was asking the court to recall its
judgment in civil Appeal No 4 of 2006 so as to set it aside or to alter it and
for correct errors in it. The applicant bank was one of the two unsuccessful
respondents in the said appeal , was held liable , together with mars
Trading Ltd , the 2nd respondents herein , for loss resulting from fraud
committed against Fredrick Zaabwe , the appellant in the appeal and now
1st respondent.

The applicant was also asking court in reviewing its judgment to exonerate
it of liability and shift it solely to the 2nd resp.

In a nutshell, the applicant was asking court to set aside its judgment, be
applying the slip rule and also invoke its inherent powers thereby to also
alter its earlier orders from aggravated damages to general damages.

72
Basically, two issues were framed for determinant. The question of whether
the judgment was based on falsehood by the evidence of the 1st respondent
and secondly that the judgment was invalid since at the time of its delivery ,
one of the justices on the panel who heard the appeal had retired and was
no longer a member of the court.

The court resolved all the issues in the negative, firstly it refused to set
aside its judgment, reasoning that neither the interest of justice nor public
policy would demand that a decision of five judges be invalidated because
one of the judges who participated in the decision recited or died before the
decision was pronounced. This is because merely that Karokora , a justice
of the supreme court who was part of the panel but retired at the time of
delivery of the judgment as argued by the applicants did not in itself
invalidate the judgment.

It was further found that the judgment was nit reached through the alleged
falsehoods in the evidence of the 1st respondent.

In conclusion the prayer for correcting or altering the judgment was found
not sustainable because its thrust was to ask court to reverse its findings
not so much because the findings resulted from accidental slip or omissions
but because in the view of the applicant the findings were erroneous.

The application was dismissed with costs to the 1st respondent.

4. Liberty construction Co. Ltd V R.C Munyani Co Advocates (HCMC

No 8/2011) By Justice Christopher Madrama
The appellant had made an application for taxation of Advocates Client Bill
of costs before the Taxing master under 57, 58 60 of the Advocates Act, rule
8 of the Advocates (Remuneration and Taxation of costs) Rules, 0.52 2 to 3
CPR by notice of motion. One of the issues was whether UGSHS 3 million

73
that had been paid to respondent was in full and final settlement of the fees
of the advocate but the learned taxing officer did not do. Instead she entered
a ruling order having proceeded with the taxation as she did.

On appeal, justice Madrama stated that judicial decisions should be

rendered in accordance with the guidance of 0.21 which contains the pre-
requisites of a valid judgment. 0.21 4 – the contents of a judgment to
include statements of the case points for determination, decision, reasons
for decision.

The application before the taxing officer was therefore a suits and a valid
judgment had to be entered.

His lordship faulted the taxing officer for failing to determine the issue as to
whether the payments of UgShs 3,000,000/= was in full finals settlement of
the fees of the advocates before proceeding with the taxation as she did.

On that premise, the taxation and orders were set aside. He ordered fresh
hearing of the application for purposes of determining the preliminary point
referred to ie whether the sum of Ugshs 3m was on full and final settlement
of the abdicates fees.

5. Maniraguha Gsshumba V Sam Nkundiye (CACA No 23/2005) -

2013
In a suit in a magistrates courts, the P1 (now appellant) contended that the
suit was res judicator in 1965 as he had litigated with the defendant over
the same land and judgment had been given in his favor by a magistrates
court in Kabale in civil suit No 53 of 1965. The Grade one Mag who heard
the suit found for the P1- to judgment was given in his favor.

74
The dependent appealed to the H/C at Kabale justice Katutsi allowed the
appeal and set aside the judgment of the magistrate.

On appeal, CoA found that the purported judgment the appellant intended
to rely on was, this rendered it an invalid judgment and therefore the plea of
judicate (as per 5.7 CPA) could not suffice.

The court found still that the learned judge (JB Katutsi) and when he held
that a plea of res judication had been waived by the dependent at trial
before the magistrate’s court.

The appeal collapsed

Amrit Goyal V Harichand Goyal Coupra in (02) Orient Bank Ltd V

Fredrick Zaabwe and Another (Supra in 03

A judgment by the Supreme Court is the final decision and no attempt can
be made by any party to reverse it, except that the court may invoke its
inherent powers to set aside its own judgments or made a slip order (that it
had made a mistake in rendering the judgment)

Adam V Libyen Arab (U) Bank (SCCA No 28/92)

The application was for a slip order for court to correct its judgment and
enforce its intention at the time of the judgment to order specific
performance.

Court declined and dismissed the application on grounds that the

circumstances for a slip order to be granted were missing and that the
courts judgment was finding to the parties.

75
Hamutenya V Hamutenya (2005)

At the end of the divorce proceedings, an order of court was made vesting
custody of the couple’s children in the respondent (mother) and barring the
applicant from them.

Sometime, the Applicant took defacto custody of the children and refused to
return them to the respondent. The applicant also made an application for
court to modify its order. The wife (Resp) argued non-obedience with a court
order and there by contempt of court.

Court found that the applicant was in willful default of the court’s order and
that there were no exceptional circumstances to allow the court to hear the
application before the contentious party has purged his/her default.

Kahumba V National Bank of Kenya Ltd (2003) 2 EA 475 (CCK)

Here in, it was held that a court order is valid and finding unless and until
it is appealed against, amended or set aside.

The court cannot hear an appeal against an order from another court with
co-ordinate jurisdiction.

ORDINARY JUDGMENT (THE LAW, PROCEDURE AND PRACTICE)

1. Caroline Mboijana and ORS V James Mboijana (Supra in (1))

2. Orient Bank Ltd V Fredrick Zaabwe (Supra in (3) atour)
Default judgment (the law, procedure and practice)

76
1. Dembe trading enterprises Ltd v Uganda confidential Ltd and
Another (HCCS No 0612 of 2006) Before Hon Mr. Justice FMS Egonda
Ntende.
The plaintiff a dealer in motor vehicle brought an action seeking to recover
the sum of shs 26.8 million with interests of 5%, as a surcharge on the said
sum, other specified sums of money, general damages, interest at 25% per
annum on decretal amount and costs of the suits. The car had been sold to
the 1st defendants, the 2nd defendant – Teddy Seezi Cheeye , the M.D made
an agreement to pay the balance by cheques but did not honor the said
agreement. The defendant did not enter a defense. The plaintiff counsel
applied for interlocutory judgment against the defendants under 0.9 r.6 of
the CPR. The registrar entered interlocutory judgment against the
dependents. And the suit was set down for formal proof.

The judge observed the claim and found it to be full of several claims. 0.9.
R.8 deals with pecuniary damages only or a claim for detention of goods
which was not the instant case. Other liquidated claims are dealt with by
0.9.r.10 in the other hand is a rule which conjoins the court to with the suit
exporter where no defense is filled.

Nevertheless, judgment was entered for the plaintiff against the defendent’s
under 0.9.R.6 in the sum of shs 26.8 million being balances of the purchase
price and other reliefs were also granted.

2. Mwatsahu V Maro (1967) EA 42 Before Harris J

The plaintiff obtained judgment in default of defiance against the dependent
fort an amount who included the cost of repairing a car sold to him by the
defendant which as the defendant had no title, he had to return to its
rightful sum. The defendant refused to approve the decree, claiming that

77
this was not a liquidated amount and the registrar had no power to enter
judgment in default on reference to the judge.

Harris J found that the claim in issue didn’t constitute a liquidated demand
since in the instant case; the sum was being claimed in reality as damages
for tread of warranty and that s claim for damages as such cannot
constitute a liquidated demand and in that regard the registrar acted
outside his powers when he entered judgment in default and thus the
defendants objection to the draft decree was upheld.

3. Mark Graves V Balton (U) Ltd (HCT -00-CC-MA-O158-2008) Before

Hon Mr. Justioce Lameck Mukasa
The application was brought under 0.9 .R. 3 CPR disputing jurisdiction of
the court. The respondent raised objections that the applicant had not filed
a defense prior the application as required. The issue than became, whether
an application under the above rule, can be filed by a dependency without
first filing a written statement of defense.

His lordship ruled that, it is not mandatory to first file a defense first if a
defendant is applying under rule 3 of 0.9 CPR provided he gives notice of his
intention to defend the proceeding prior to the filing of the application and
does so within the time limited for service of a defense.

Nevertheless, the application was caught up by the time limits required by

the rules (filed outside 15 days)

All in all the application was found to be outside the scope of order a rule 3
CPR and dismissed with coasts to the respondent.

78
4. Craig V Kansen (1943) ALLER 108 (CoA) Lord Greene MR and
Goddard LJ
In an action, an order was made granting the respondent leave to proceed,
however summoned upon which this order was made was not served upon
the appellant.

It was held inter alia that the failure to serve the summons upon which the
order in this case was made was not a mere irregularity but a defect which
made the order nullity and therefore, the order was aside.

5. Edison Kanyabwera V Pastori Tumwebaze

SCCA No 6/ 2004) CORAM: ORDER, TSEKOOKO, KAROKORA,
MULENGA and KANYEIHAMBA
The plaintiff appealed to the court of appeal against setting aside an exparte
judgment made in his favor. The court decides in his favor, hence this
appeal by the respondent to the Supreme Court.

The court found that the defendant had not been served at all with the
hearing notices, thus an exparte judgment ought not to have been made.

The order ad judgment of the CoA was set aside and the order of the high
court was restored setting aside the judgment.

Concern Worldwide V Mukasa Kugonza (HC Civil Revision No 1/2013)

Before Hon Lady Justice H Wolayo

The matter came up for revision before her lordship of a default judgment
entered by the trial magistrate in favor of the respondent (former employee
of the applicants) for unlawful dismissal.

Her lordship found that the trial magistrate erroneously entered a defaults
judgment since the claim was for unspecified sums of money and for

79
general damages for wrongful dismissal. There was need for the
respomde4ny to advice evidence of wrongful dismissal and for his
entitlements.

Default judgments can only be entered in respect of a claim for liquidated

demand i.e. specific sums of money.

The default judgment was set aside.

6. Lloyds Forex Bureau V Securex Agencies (U) Ltd (HCT-00-C5-358-

2012) Before Hon Justice Christopher Madrama
The plaintiff had been robbed by an employee of the defendant Co. the p/-
sued to recover Ugshs 50,142,000/=, interest, damages and costs of the
suit. Def. was served refused to file defense, P1 filed a letter on court record
praying that court enters interlocutory judgment against the Def (0.9 R.8)
and the suit was set down for formal; proof.

Interlocutory judgment was entered by the registrar the commercial county

division. The suit was then fixed for formal proof on 30 Nov 2012.

Lord Madrama drew a distinction between 0.9.R.6 which deals with claim
for liquidated demand and 0.9.R.8 which deals with a claim for pecuniary
damaged only.

That in the instant, the P1 ought to have applied under 0.9.r.6 which deals
with a liquidated and some other claim (to attract a default judgment) up
default of to file a defense within time requited. A claim for pecuniary
damages is not a claim for a sum certain in money.

This was a case where the plaintiff action was not for pecuniary damages
only; it was a claim for a liquidated sum coupled with a claim for pecuniary
damages.

80
Nonetheless , in his lordships wisdom, it is possible to have both a default
judgment and an interlocutory judgment in one suit that is judgment in
default is entered for a liquidated sum while interlocutory judgment is
entered in respect of the claim for pecuniary damages (as was in this case)

Thus, the Pl was entitled to judgment in default on the liquidated sum and
proceedings for formal proof will only be for genera; damages.

He cited his decision in NSSF V Kisubi High school (HCCS No 440/2011)

which re-affirms the position that a judgment in default is entered for a
liquidated sum while interlocutory judgment is entered in respect of the
claim for pecuniary damages.

7. Twine Amos V Tamusuza James (HC Civil Revision N0 0011/

2009) Before Hon Lady Justice Irene Mulyagonja
In a matter for revision emanating from a trial magistrate grade one (her
worship Sarah Langa Sin – (then) (now C/Magistrate ACD Kololo) decision
entering an interlocutory judgment under 0.9.R.6 in favor of the respondent
for special damages that arose out of the death of his son caused by a
vehicle belonging to the applicant, her lordship was of the view that the
amount of Ugshs 1,686,000/= that the respondent claimed could not be
described as a liquidated demand. It was not fixed, ascertained, agreed
upon by the parties to the action or specifically pleaded and strictly proved.

In the result, her lordship found that entering judgment under 0.9.R.6 was
only irregular and the irregularity was not a material one because thereafter
the court followed the correct procedure.

8. Valley Alia V Alionzi John (HCCS No 157/2010) Lord Justice

Christopher Madrama

81
There in, his lordship found that the defendant was not validity served with
summons, so a default judgment under 0.9.R.6 or interlocutory judgment
under 0.9.R.8 could not be entered against the dependent. In that case,
there was no proof before court that summons together with the plaint had
been served upon the defendant

Lord Madrame concluded that, the interlocutory judgment had been

irregularity entered by the deputy registrar and was set aside.

Default judgment against Government (AG)

1. AG V Sengendo (1972) EA 356 Panel Sir William Duffis, P.Lutta

and Mustafa IJA
The respondent succeeded in a suit against the government at trial and he
was awarded damages. That he sustained injuries inflicted as a result of
soldiers shooting at him along Kampala Road.

The AG appealed against both the assessment of the damages and also that
rule 6 of the civil procedure (Govt Proceedings) rules barred the suit against
Government.

In his judgment , Mustafa JA was of the view that in the instant case the
respondent did not ask for judgment in default , so r.6 of the Ruler did not
apply / here the respondent wanted his suit heard and was infant set down
for hearing.

The appeal was dismissed.

2. Agasa Maingi V AG (Case No 0095/2002) Before Justice Katusi

The application was brought under rule 6 of the civil procedure (Govt
proceedings) rules and 0.11 r.6 CPR that judgment is default issue against
the AG.

82
The judge ruled that since the AG was served with summons and failed to
enter appearance on that ground alone the application succeeded.

INTERLOCUTORY JUDGMENT.

NBS television limited v UBC (HCCS NO.007/2013) Before Justice

Hellen Obura.

This was an exparte application brought under question 14(1) and (2) of the
CPR for orders that the third party notice both issues to the respondent as a
necessary party to the suits for the purposes of indentifying or otherwise
contributing to liability that maybe imposed on the applicant arising from
the suit no. 246 of 2012 between super sport international (PTY) limited and
the applicant in the event that judgment is entered against the applicant in
the suit.

In the circumstance her lordship granted leave to the applicant to issue a

third party notice to the respondent.

Dembe Trading Enterprises Limited v Uganda confidential limited.

Before Hon. Justice Egonda Ntende.

The plaintiff applied for interlocutory judgment against the defendants

under 0.9r6 CPR which he acted as5.1 71-3. The interlocutory judgment
was issued and the suit was set down for formal proof.

Instead during the formal proof, his lordship found that the suit was
supposed to be brought under 0.9r6 entered judgment against the
defendants accordingly. The registrars’ order for interlocutory judgment was
set aside.

83
Mogan v Ottoman Bank (1968) EA 156 Before Sir Clement, Duffus Spry
JJA.

The facts were that the advocates for the respondent bank sent a registered
letter dated February 28th 1967, to the applicant stating that field within ten
days from the receipt of the letter, the respondent bank would apply for
judgment with default. On March 20th 1967, the respondent bank was
granted judgment in default.

It was held that the time for filing defense had not expired by March 20th the
exparte judgment should be set aside. The time for filling WSD had not
elapsed.

Twine Amos v Tamusuza James (supra in 7 under default judgment.)

An interlocutory judgment was entered against the applicant court

proceeded to access damages in the suit. Court found that although wrong
procedure was used to enter judgment under 0.9r6 since the claim was not
liquidated; altogether the suit was set down for hearing. This irregularity
was set down for assessment of damages.

JUDGMENT ON ADMISSION (THE LAW, PROCEDURE AND PRACTICE)

Ziraguma Emmanuel and Another v the most Rev.L.M. Nkoyoyo (HCT-

00-CV-0282-2003.) Before Justice Aweri Opio.

84
This was an application for a temporary injunction to issue against the
respondents to deter him from interfering in the affairs of Muhabura
diocese.

An affidavit deponed by the provincial secretary, Rev. Canon Stanely

Ntagali, he admitted that the house of bishops had elected Rev. Canon
Sebuhinja as the bishop of Muhabure diocese that the decision the decision
was not subject to any challenges.

His lordship found that if the temporary injunction is granted it will only
dispose off the main suit and not maintain the status was dismissed.

Agasa Maingi v AG (Supra)

In this case, judgment in default was entered in favor of the applicant since
the AG failed to enter appearance and yet he had received summons.

Thus the AG was termed to have accepted judgment against it.

Central electrical international limited v Eastern Builders engineers

limited (HCT-00-CC-MA-0176-2008).Before Hon.Mr. Justice Lameck
N.Mukasa.

This was an application by notice of motion brought under order 13 rule 6

CPR and sections 16-29 of the audience act where by the applicant central
electrical international limited, who was the plaintiff in the main suit
seeking for orders that a judgment on admission he entered against the
respondent/defendant in favor of the applicant/plaintiff for USD 48,598.

The ground was that the defendant/respondent had an admission of

indebtness and that it was equitable and just that a judgment on admission
be entered.

85
The rule enables either party at any stage of the suit to apply for judgment
on the admission which have been made by the other party. However a
judgment on admission is not a matter of right but at the discretion of the
court. If a case involves questions which cannot be conveniently disposed of
an motion under the rule, the court may in the exercise of its discretion
refuse the motion.

In the instant case, it was found that the admissions upon which the
applicant based its applications were not made at any stage of the suit but
made in 2005 before the filing of this suit and in another suit. The
application failed because such admissions should not be made at
interlocutory stages before the suit but in the main suit in the pleadings.
Application was dismissed.

Esparto judgment (the law, procedure practice)

Twine Amos v Tamusuza James (supra)

Her lordship Irene Mulyagonja explained the circumstances under which a

party precedes exparte. Such are under 0.9r11(2) CPR the dependent has
not field a WSD the is allowed to proceed exparte there is no need to serve
them with a hearing notice.

It is only under 0.9r11 (1) where defendants have fielded a defense that they
should be served with a hearing notice.

In the instant, failure by the applicant to file a defense, the

defendant/applicant opened the door for the plaintiff to proceed exparte in
the suit which he did under the provisions of order 9 rule 11(2) CPR.

Her lordship accordingly found no faults for the respective or trail courts for
proceeding to hear the suit in the absence of the applicants.

86
Fred Hereri AG (HCCS No. 42/1995) Before Hon. Justice V.F Musoke
Kibuuka. (see supra in No. I under adjournments of prosecution of
suits.)

The definition despite being served with summons, hearing notice, did not
enter appearance the application was permitted to proceed with the hearing.

Magon v Ottoman Bank (supra in 3 under interlocutory judgment.)

AG V Sengendo (supra in 1 under default judgment against government.)

Consent judgments, compromises (the law, practice and procedure)

All sisters company (ff Guangzhou Tiger Head and Another HCMH
No.307/2011) Before Justice Christopher Madrama.

The application was for orders that a consent judgment between the
plaintiff, 1st and 2nd defendant in HCCS No. 128/2010 be granted.

An objection was raised that the wrong procedure was used because a
notice of motion brought under order 62 rules and 3 of the CPR and section
98 of CPA was the not the right or correct law for setting aside a consent
judgment.

On the question of improper procedure after receiving relevant authorities,

the judge found that an application to set aside a consent judgment maybe
made by notice of motion for review or it may be made by plaint. Secondly
that a wrong citation or failure to cite the correct rule so long as it did not
go to jurisdiction or occasion a miscarriage of justice to the opposite side did
not make an application incompetent. The application is not a nullity and
maybe cured by amendment.

87
On the question of setting aside the consent judgment on grounds that the
applicant was a party to it.

Geoffrey Gatete Anr v William Kyobe (SCCA No. 105) Judgment of

Mulenga JSC.

This appeal originated from a summary suit instituted in the high court by
William Kyobe the above named respondent in which he attained a consent
judgment against GMT group, a business firm comprising 3 partners
namely Geoffrey Gatete and Angela Maria Nakigonya , the above named
appellants, and one Matsiko Kasiimwe. Both the trial court and court of
appeal dismissed the applicant’s applications for leave to appear in and
defend the suit hence this second appeal.

The consent judgment had been signed by the third partner (Matsiko) and
counsel for the plaintiff. The consent judgment was field in court and
formerly entered and signed by the deputy registrar on 18th/April/2008.

The applicants only became aware of the judgment on 6 th may 2002 when
they were served with a warrant of attachment in execution of the decree.

Court found that the consent judgment was executed frequently as between
the plaintiff counsel and Matsiko without informing the partners and their
consent.

The consent judgment in the summary suit was a set aside and the
appellants are granted unconditional leave to appear and defend the suit.

Peter Mulira v Mitchell Cotts Limited (CACA N0.15/2002)

Parties in the course of trial agreed to settle their disputes in which case
they agreed in all issues except cost and professional lien of the appellant .a

88
consent judgment was entered by the court in the presence of counsel for
both parties. Later, the appellant sought to challenge the consent judgment.

Hon. Justice Kitumba JA stated; the law regarding consent judgment is that
parties to a civil suit are free to consent to a judgment. They may do so
orally before a judge who the records the consent or they may do so in
writing and fix their signatures on the consent. In that case still the court
has to sign that judgment. A consent judgment may not be set aside except
for fraud, collusion or for ignorance of material facts.

In the instant case, court found that the consent judgment had been
properly executed in respect of matters agreed on by the parties.

The appeal was dismissed.

Rotucal (U) ltd v Barclays bank (HCT-0507-2009)

The applicant sought leave of court to appeal to the court of appeal on

certain points whether medication proceedings which result into a consent
judgment find the parties.

J. Lameck Mukasa granted the prayer to appeal since it would be of great

public importance to receive the decision of the company on the matter.

Betico (U) ltd Another v Barclays bank (HCT-0243-2009).

This application was before J Lameck Mukasa seeking to set aside a

consent judgment executed between the two parties that the directors of the
applicants signed the consent judgments under a mistake and or
misinterpretation as to the true contents of the judgment.

89
It was held that the consent judgment was binding the parties that there
was audience that it had been signed in the presence of the applicant’s
representatives (the two directors) and their three lawyers and the mediator
(Justice Kiryabwire).

Meera investments limited v Jeshang Popats Shah (CACA No.56 of

2003) Judgment of Kitumba JA.

The appellant /plaintiff at trial brought an action against the

defendant/respondent for an order that he surrenders.

90
 TOPIC FOUR

SETTING ASIDE OF JUDGEMENT AND DEGREES

Effect of judgment

1. National enterprises corporation V Mukisa Foods Ltd (CACA No.

42/1997).
Judgment of Berko, JA.

The appellant disputed the validity of a judgment in default against it at

trail for failure its file a WSD to thereby enter appearance.

The court noted, there is a judgment which though by default is a regular

judgment. The court went further amending their plaint did not serve the
amended plaint to the appellant. And that the appellant might have had
good reasons for not defending the original plaint, but it was wrong to
assume that introduced a new element that was not in the original plaint. In
essence, that the circumstances required that the case be heard on its
merit.

Accordingly, the trail judge was wrong in disallowing the application to set
aside the exparte judgment.

The exparte judgment was set aside.

2. Hamutenya V Hamutenya (2005) NAHC1 Maritz, J

The applicant sought an amendment of the settlement agreement
incorporated in the final decree of divorce issues by the court. The
respondent opposed the application and one of the grounds was that the
applicant is in contempt of the existing order and that the court should

91
decline for hear the application unless and until the applicant has purged
his consent.

The court struck the application, finding that the applicant intended to
evade an order already in place, that as evident from a report presented by
the applicant, there was nothing in the character or the conduct of the
respondent which makes her unsuitable to take care for the children
pending the adjudication for any application of an amendment of the
courts earlier order.

3. Kahuntu V National Bank of Kenya Ltd (2003) 2 EA (CCK)

BEFORE: NJAGI J.
The Plaintiff made an application to court seeking discovery of documents of
the defendant. The court made an order requiring the defendant to make
discovery within 14 days, a default of which the statement of defence would
the struck out and judgment entered in favour of the plaintiff. The
defendant sought to comply with the court order and produced.

Some but not all documents specified the court order. In explaining the
non-production of some of the documents, the defendant states that it had
been in possess of the specified document during the period between 1978
and 1982 and that the same had been mislaid or lost and could not be
traced from its records or archive.

Following the failure by the defendant to produce all the documents

specified, the plaintiff applied to court to have the statement of defense
struck out in accordance with the earlier court order.

It was held that a court order is valid and binding unless and until it is
appealed against, amended or set aside.

92
The conduct of the defendant showed a willful disregard of a court order
which merited imposition of the penalty ordered by the court. The
defendant’s defense would therefore be struck out.

4. George William Kateregga V Commissioner for Land

Registration ORS (HEMA No. 347/2013) Before Hon. Mr. Justice
Bashaija K. Andrew.

The application was for a temporary injunction.

His Lordship dismissed the application with costs having found that the
high court had cancelled and revoked a certificate of title which orders
of the high court in that regard was inbound the applicant too though
he was not a party to the suit.

The applicant had not taken the advantage of applying for review but
chose to move by filing a fresh suit (he had no cause of action).

Setting aside of judgment and decree under 0.36.11.

Kingston enterprises and ORS V Metropolitan properties Ltd. (HCT-OO-

CC-MA-314-2012). BEFORE: HON-LADY JUSTICE HELLEN OBURA

This was an application to set aside an exparte judgment as well as issue

orders for the applicant/defendant for appear and defend the suit, the
application was brought under order 9 rule 27 and 29 CPR. On this note,
the respondent raised a preliminary point of law that the application had
been brought by wrong procedure and saw to that being fatal the
application should be dismissed. Her Lordship overruled the objection any
grounds that it did not prejudice the respondent. Accordingly she
proceeded to hear the application on merit under the correct law which is
0.36-8-11 which deals with setting aside of exparte judgments from

93
summary procedure as issuing orders for leave to appear and defend the
suit.

The judge also found that service of summon by way of substituted service
had been effected on the applicants, further still, the applicants had not
shown good reason for their failure to seek leave to appear and defend the
suit.

In the result, the application was dismissed.

2. Ali Ndaula and Another V R.L Jain (HEMA No. 0624/2008) Before
Hon. Justice Lameck N.Mukasa.

This application was brought seeking orders that the judgment or order
entered against the applicant/1st Defendant in the main suit be set aside
and for the applicant to be granted unconditional leave to prosecute Misc.
Appl-522/2008 for leave to appear and defend the main suit. He averred
that he was interested in prosecuting the application and it is interested in
prosecution the application and it is his lawyer who negligently and
knowingly refused to attend the hearing which resulted into dismissal of
his suit to entering exparte judgment.

Government ruled that considering the reason given by the applicant in his
affidavit which were neither denied nor rebutted, the applicant had good
cause for his failure to personally attend the hearing and he cannot be
condemned for his counselor negligence.

However, it was further found that Misc application No. 522/2008 had no
merit in warrant its restatement.

The application was accordingly dismissed with costs to the respondent.

94
3. Meddie Dembe V Nalongo Namusisi (HCMA N. 35/02) Before HON
LADY JUSLICT M.S ARACH AMOKO

The application was brought under the then 0.33rr. 3,4 and 11 and 0.48
8.1 CPR for orders that the judgment and decree in

C.S, No. 709/09 be set aside, any pending execution be staged, the
applicant be granted unconditional cease to appear and defend, the
applicant be released from Civil prison and costs of the applicant be
provided for.

The Application was dismissed because the Applicant failed to satisfy and
that he was not served with summons. He also failed to show that he had a
plausible /good defence to the suit.

Setting aside of judgments and decree under 0.9 r.12

1. Tweheyo Edison- V- Barurengyera Katusiime (HCT – 5 – CV – CA

– 011 – 2010) Before Hon. Mr. Justice Andrew K. Bashaija.
This was an appeal for an order of the trail court refusing the appellant s
suit and also set aside an expert Judgment made against the Appellant.

The Judge started by alluding to the fact that one of the grounds argued by
the appellant did not appear in the memorandum of appeal and therefore
could not stand.

He also found that service was effected since the trail court could on that
issue not be faulted because the lawyers for the Respondent were diligent to
serve the Appellant on personal but their efforts came to nothing and hence
the circumstances of the case merited service though substitutes service
which is as good as personal services

95
2. The Cooperative Bank Ltd (in liquidation) r. Amar Mugisa
(HCMAA No. 549/2009) Before: Hon. Lady Justice Irene Mulyagonja
The applicant who brought under the provisions of 5.98 CPA and 0.9 v 12
CPR she sought for orders that’s the interlocutory judgment entered by the
D. Registrar on 27/05/09 in ACCS 141 of 2009 be set aside and that she be
allowed to file a WSD out of time.

The grounds of the application being that the Applicant was never served
with summons to file a defense in the suit and that she had a good defense
to the suit.

Thus, there are an allegation that the interlocutory was entered irregularly
since the Applicant also disputed effectiveness of service of summons, the
issue was who should receive court process on a company under
liquidation> the court conducted that such service of process should be
left at the office of the liquidator (cited 0.29 v 2(6) CPR.

Accordingly on the instant, it was found that service of the plaint and
summons was property effected upon the applicant by leaving them at the
office of its liquidation.

In considering the question of not filing ESD, her Lordship distinguished

two provisos, 0.9 r 12 under which the applicant was brought gives a wide
discretion to court to set aside interlocutory judgment while 0.0 r 27
provides for setting aside decree and limits the discretion to cased where
applicant cause for non – appearance is proved. That the decision under 0.9
R.12 CPR entirely rests upon the discretion of the court.

In the result, it was found that much as the applicant did not disclose a
defense in her application, exe r casing court’s discretion and in the
interests of justice, the applicant was allowed.

96
The interlocutory judgment entered against the applicant was set aside. An
order was also made for the applicant to file a case in sit with 7 days from
the date of this order.

Mbogo & Anr V Shah (1968) EA 93 (CH) It was May that 0.9 v 9 fives the
H/C unfeleltered discretion to set aside or vary on exparte judge.

3. Emiru Angose v Jas Projects Ltd (HMA no 429/5

The application was by way of notice of notion under 5.34(1) and 98 CPA
orders 9 rules 9 and Oder 48 rules 1 and 2 and S.33 J.A.

The application sought for Orders that judgment passed exparte in….. suit
No. 280 of 2005 be set aside and the applicant be allowed to file a defence
for the case to be heard on its merits, that the execution in the above suit
No 280 of 2005 be set aside and the applicant be discharged form Civil
prison.

On the issue of whether there was effective service of summons, court found
that there was an effective service. Neither was the applicant served in
person nor his agent – the receptionist purportedly served was not an
agent of the Applicant / Defendant within the meaning of 0.3 CPR.

Accordingly the exparte judgment was set aside and an order was made for
the applicant to file his defence.

4. Ladack Abdalla r Griffiths Isingoma (SCCA No.8 of 1995).

This was an appeal against the Ruling and order of the high Court whereby
a consent judgment entered by the Registrar of the High Court in a Civil
suit between the appellant as plaintiff and the Attorney General and the
please see ………page 5

Nicholas Roussous V Gulam Hussein 2 Another (SCCA No.9 / 1993)

97
Judgment

This was an appeal against the order of the High Court on Kampala over
ruling a preliminary objection by the appellants that the application to set
aside the exparte Judgment against the respondents which was brought
under 0.9 r. 9 CPR (now 0.9 r. – 12) was made under a wrong rule and
therefore was incompetent and should be struck out unless amended. The
resp. opposed the objection. The trial Judge held that the appl.. was
properly made. Hence this appeal court made a distinction between setting
aside a default Judgment under 0.9 r. 12 (now) and 0.9 r. 27 (now in the
following terms.

Firstly, 0.9 r. 12 offers court aside discretion to set aside or vary, the
judgment upon such terms as may be just. Under r. 27, court’s power is
limited to in effective service of summons or sufficient cause for not entering
appearance.

Secondly, 0.9 R. 12 – for it to apply judgment must have been passed

pursuant for the proceeding rules as 0.9 i.e under 0.9 r.6, 0.9.r.8 and 0.9 r.
11(2) CPR or where a Registrar enters Judgment in cases under 0.5..

The, court, therefore concluded that the legal principles applicable for
applications under 0.9 r.12 and 0.9 r.27 are different & the learned
judgment erred in holding that they were the same.

It was held that the application to set aside the exparte judgment was in
properly brought under 0.9 r.12 instead of 0.9 r.27.

The ruling orders & the trail judgment were set aside and on order
upholding the objection was made in favour of the appellant.

98
8.Ladak Abdalla v Grifitith Isingoma and others (SCCA No. 8 / 1995
(supra in No.4)

Parties executed a consent judgment in respect of a suit for repossession

. a third party (respondents) whose property at Plot 4B Acacia Avenue was
affected by the consent Judgments.

Their lordship were of the view that this third party could as well invoke
somebody of setting aside such consent judgment under 0.9 r.12 CPR
(because that rule is made f .. give’s court aside discretion to set aside or
vary the terms of a judgment including a consent judgment.

Thus, the trail judge erred when he failed to vary the consent judgment to
exclude reference to plot 4B Acacia Avenue.

Departed Asian Property Custodian Board as defendants, received a favour

of the respondents who were not part t the suit. The court ruled that the
consent judgment should not apply to the respondent’s property.

With regard to 0.9 r. 9 (now Rule 12) the supreme Court, Odoki J.S.C (she
then was, held that it give the court an unfettered discretion to set aside or
vary exparte judgments upon such terms as may be just l(including
setting aside a consent judgment).

In the result, the appeal was allowed , setting aside the learned judge’s
order reviewing the consent judgment.

5.(Lebel (East Africa) Ltd V E.F Lutwama (CACA No.4/8 Judgment of

Manyindo, V – P.

99
There was an appeal against an order of the trial court which dismissed the
appellant’s’ application for and order setting aside the expart judgment of
Kantinti, J (as he then was) dated 25/7/83.

Justice Manyindo found that the trail judge had not exercised his discretion
judiciary in the instant, the trail Judge’s orders were set aside set aside the
exparte judgment of Kantinti, 3 (as he then was) in reinstated the suit for
bearing on a date to be fixed by the Registrar.

6.Kimaini V McConnel (1966) EA 547 Before: Harris J.

This was an application by the defendant applicant to set aside a judgment

in default of defense passed by the court. The plaintiff alleged that the
judgment was entered enter parties and not exparte, therefore the court had
as jurisdiction to set it aside.

Court found that the judgment obtained by the plaintiff respondent was
exparte because the notice of motion of the defendant for a stay followed by
their withdrawal did not constitute an appearance. Exercising court’s
discretion, the application was allowed and the exparte judgment and
decree set aside.

8. Patel v EA Cargo Handling series Ltd (1974(, EA 75 (CAM) Before Sir

William Duffus P, Law Ag V-P and Musoke Jk

The Appellant obtained a defaults judgment against the respondent, which

judgment was set aside by the High Court. On appeal against the order the
appellant contended that before a default judgment can be set aside the
court must be satisfied both that there is a good defense and that there was
a cause for the delay in appearing.

100
The lead judgment of the court was delivered by Sir William Duffus P. His
Lordship observed that there are no limits or restrictions on the judge
discretion except that if he does vary the judgment he does so on such
terms as may be just.

Accordingly, it was found that the trial judge properly exercised his
discretion in setting aside the exparte judgment – there was a good defense
(that the appellant took his leave in full during his period of notice). This
showed defense on the merits and further still, the delay in filing the
defense in time was justified since it was due to misunderstanding in the
respondent company’s office as to the action to be taken on the summons.

The Appeal was dismissed

See also UBC , NBS Television (u) ltd on conduct of the Applicant UBC
learnt of the Judgment and applied after 6 months . Court declined to set
the judgment aside.

101
SETTING ASIDE CONSENT JUDGMENT

1) All sisters Co. Ltd v Guangzhou Tiger Head (HCMA) No.

307/2011) Before Justice Christopher Madrama
The application was for orders that a consent judgment between the
plaintiff, 1st defendant and second defendant in HCCS No. 128/2010 be set
aside and costs of the application.

The respondent raised objections as to competence of the application, that it

was served in the affidavit in support of the application that the person who
signed the consent judgment was not authorized by the company to do so,
the respondent contended that such kind of allegation requires evidence in
an ordinary suit where witnesses can be cross - examined.

The objection was overruled on ground that an application to set aside a

consent judgment may be made by notice of motion for view or it may be
made by a plaint, in the constant , wrong procedure did not go to the
jurisdiction and did not prejudice the respondent. The application would
not be incompetent.

2) Peter Mulira V Mitchell Cotts Ltd (CACA No.5/2002)

Before Justice Kitumba , JA.

Parties in the curse of trial agreed to settle their dispute in which case they
agreed on all issues except cost and professional ein of the appellant. A
consent judgment was entered by the court in the presence of counsel for
both parties. Later, upon the appellants’’ challenge of the consent judgment,
it was held that the consent judgment had been properly executed in
respect of maters agreed upon by the parties.

102
On appeal, the consent judgment in the summary suit as set aside and the
appellants were granted unconditional leave to appear and defend the suit.

(4) Betuco (u) Ltd and Another v Barclays Bank (HCT – 0243) Ruling
Before Justice Lameck Mukasa.

This was an application seeking to set aside a consent judgment between

the two parties.

His Lordship ruled that the consent judgment was finding to the parties and
that there was evidence that it had been signed in the presence of the
applicants’ representative (the 2 Directors) and their 3 lawyers in the
mediator (J. Kiryabwire).

5) Meera Investments Ltd -V- Jeshanga Popat shah (CACA No. 56 of

2003

Judgment of Kitumba. 5A

In the process of the proceedings, the parties agreed to a consent judgment

to withdraw the plaint and the counter-claim a trail. On appeal.

The Respondent argued that a consent judgment does not stop legal
proceedings as the action can proceed for the purposes of obtaining
execution orders and final judgment.

The court disagreed with the trial judge who resurrected the suit even when
a consent judgment had been reached between the parties a consent
judgment is binding unless set aside.

The appeal was allowed

103
(6) Nicholas Rousses v Gulam Hussein and Anr (SCCA No.3/93,
application to set aside an exparte judgment made against them. The
appellant objected then to the respondent’s application on the ground that
it was improperly before the court. The Trail judge had over ruled the
objection.

On appeal to the Supreme Court, the appellant was successful against that
ruling by the Trail Judge where of the Court (SC) ordered that the
respondent’s application to set aside the exparte judgment be stuck out
with costs to the appellant.

Setting Aside of Exparte Decrees Under 0.9 r. 27 AlHajj Abidi and

others v Tropical Africa bank (HCMA No. 260/2006) 2013 Before
Justice Christopher Nadrama Izama

The application was brought under 0.9 r.26 (now and 9 r.27) CPR after
decision seeing to set aside the exparte decree / judgment against the
applicants in the main suit and also that the 1st Applicant is heard in
defense of the suit and secondly, the applicant sought order that execution
is staged pending the hearing and final disposal of the application.

The grounds were for effective service of summons since Applicant No.1 and
3 were out of the country.

It was found that substituted series was ineffective and the proper way
would have been to serve the summons out of jurisdiction (0.5 r.22)

Consequently, the judgment and decree of the court in the main suit was
set aside against the applicant (No.1) only user the provisions of order 9 rule
27 of the CPR.

104
(2) Nicholas Roussas v Hulam Hussein and Another (for facts and
decisions, see supra in (60 Under setting aside of consent judgment)

3) Kingstone Enterprises Ltd & others v Metropolitan Properties

(See Supra in No.1 on sub topic “setting Aside of Judgment in Decree ….
Under) 0.36 r.1).

(4) Lebel (East Africa) Ltd v E.F Lutwama

(see case No.5 on subtopic “setting

A side of Judgments and Decrees under 0.9r.12)

(5) Zena Abdalla Okello & Ors v Mayan Aziz

(ACMA No. 118/2009).

Before. Hon. Lady Justice Margret C Ogulio..

This application seeking to set aside an expparte judgment and decree made
against the Applicant was brought under 0.9r.27, were that the
respondent’s counsel moved courts to enter the exparte judgment even after
being informed that the applicants’ buyer could be present at the hearing
secondly, that the Applicant had filed, WSD and a counter-claim to the suit.

Court was not satisfied that three was sufficient causes for the applicant
not to attend court for the hearing and also it was found that the
application (this current one) was brought after 7months of the passing of
the decree and this was considered and anytime for the applicants to have
waited before filing this application.

Consequently, the application was dismissed

105
(6) Zirabamuzale v Corret and Another (1962) E.A 694 Before Bennett
Ag. C.J.

In a claim against both defendants in negligence, the 1st Defendant had not
given instruction to the defense who refused to file the defense, by way of
consent, the claim against the 2nd defendant was dismissed.

The case against the 1st defendant was then heard exparte and judgment
against him was duly given. The 1st defendant then applied that the exparte
decree be set aside on the grounds that, despite the first defendant’s failure
for file a defense, he ought to have been given notice of the hearing and that
failure to do so constituted “as sufficient cause” for his non – appearance.

The application was dismissed, Bennet Ag CJ, ruling that, the cause of the
first defendant’s nonappearance when the suit was called for hearing was
his failure to give proper instructions to his defense to his advocates and
this did not constitute a sufficient cause for non- appearance at the hearing.
The plaintiff’s advocate s were therefore justified in with drawing the case
against the second defendant and proceeding exparte against the 1 st
defendant.

(7) Patel v Star Mineral Water and Je. Factory (1961) EA 459 Before
Sir Kenneth, Sir Trevor and Grawsha JJA

The respondent obtained judgment exparte against the appellant, for shs
8,945/- interests and costs . on application by the appellant for an order to
set aside the judgment, the judge ordered that the judgment should be set
aside on terms that the appellant should pay shs 4000/- into court ,
furnish a bond for shs . 5000/- , the sureties to be approved by the
advocate for the respondent and pay all costs to date before the next
hearing.

106
On appeal, the appellant submitted that the judge in making the order did
not exercise his discretion judicially, and that the conditions were unduly
ovirous and the costs punitive.

The appellant court, Sir Kenneth O’Connor, applied the trial judge’s order
holding) that there was no reasons to suppose that the judge did not
exercise a judicial discretion as to the conditions.

(8) Miltha V Ladak (1960) E.A 1054.Before Simmons J.

The defendant attorney, took no further part in the day’s proceedings, which
resulted in an exparte decree in favour of the plaintiff . The defendant by
another advocate, R later applied to another Magistrate for the decree to be
set aside. The magistrate refused to set aside the decree.

The defendant appealed. It was held inter alia that the defendant was net
presented by sufficient cause” but by circumstances of his own making
incemely, withdrawing instructions and failing to comply other than
condition upon which a postponement was granted. The Appeal was
dismissed.

(9) The fort Hall Bakery Supply company v Muigai Wangoe (1958) E.A
118

Edmonds J.

The defendant moved the supreme Court under 0.9 r 10 of the Civil
procedure (revised) Ruler, 1948 to set aside the exparte judgment entered
against them for default in filing a defense within the time allowed. The
plaintiff opposed the application and he preliminary question before the
court was whether the motion was competent. Counsel and the plaintiff
contended that as a formal decree was already in existence the rule ..

107
applicable was 8.24 which begins “ in any case in which a decree is
passed..” but that as the defendant had already applied under this rule
previously and through a mutual misapprehension had had his motion
dismissed to defendant’s only remedy was by way of review or appeal.

(10) Mbogo & Another v Shah (1968) EA 93 – CAN

Before Sir Charles Newbold P, Sir Element in Law JA.

The respondent was knocked down and injured by vehicle which was
coned by the first appellant and driven by the second appellant at the time.
The respondent notified the Insurance company of the vehicle that be
intended to hold that company liable to compensate him. The company
denied liability. The company’s advocate , however refused to accept service
of the proceedings filed by the respondent against the appellant and service
was effected by advertisement.

No appearance was entered and no defense was filed by the respondent

obtained judgment exparte against the appellants which the insurance
company then applied to set aside. Its application was refused by the H/C ..
it then brought this appeal against that refusal.

It ws held that the trial Judge rightly exercised his discretion to refuse the
application. The exercise of discretion by a Judge shall not be interfered
with unless it is satisfied that the Judge misdirected himself in some matter
and as a result arrived at a wrong decision, or unless it is manifest form the
case and a hole that the judge was clearly wrong in the exercise of his
discretion and that as a result there has been misjustice.

(1) Sir Nicholas Roussous V. Gulam (under 7. On setting … Exparte

Decree under 0.9 r.12

108
(2) See also George William V Comm. For land Regar Others (supra)
- Third parties cannot apply to set aside under 0.9 r. 27

TOPIC 5

THE TRIAL AND PRE-TRIAL PROCEDURES

CAUSE LISTING OF CASES AND SERVICE OF HEARING NOTICES

1. Tommy Otto v UWA (HCT-00-CC-CS-208/2006) Before Hon.

Justice Lameck N. Mukasa
The plaintiff was an employee of the defendant who was summarily
dismissed for allegedly authoring a threatening letter to some officers of the
defendant. The dismissal was based on a government analysis report.
Court at trial found that the dismissal was unlawful; the management was
not the right organ to do the dismissal; secondly the report was not
comprehensive.
However, the prayer for re-instatement was denied and instead court
awarded the plaintiff damages as a way of compensating him.

2. Edison Kanyabwera V Pastori Tumwebaze (SCCA NO. 6 OF 2004)

Judgment of Order JSC
THIS IS an appeal against the judgment of court of appeal which reversed
the trail court’s decision (Okumu Wengi)
The contention was on whether hearing notices were effectively served on
the defendants/respondents.
The supreme court found that such hearing notice had been effectively
served on the defendants counsel as there was even no aff8idavit of service
on courts record. (0.5r.16 CPR)

109
The COA therefore erred when it found that there was effective service. The
order of the high court setting aside the judgment which had been made.

3. Kasirye, Byaruhanga & Co. Advocates V Mugerwa Pius (CACA NO.

87 OF 2008) CORAM: TWINOMUJUNI, BYAMUGISHA & KAVUMA
JUDGMENT OF TWINOMUJUNI, JA
At the trial court, in an application for a temporary injunction, J Choudry
Sing did not follow proper procedures in legal proceedings where of the
injunction was subsequently granted.
On appeal, the grounds were that the proceedings were irregular- there was
no hearing at all before the temporary injunction was granted, that the
appellant was denied a fair hearing when the trial judge wrongly omitted the
mandatory mediation and scheduling conference ordered the filing of
documents, “witness statements” and “skeleton arguments” and then fixed
a date for delivery of his “judgment” and further that he entertained the
merits of the case.
The appellant court agreed that the proceedings were irregular and that any
orders such as for injunction would be set aside and the application was
remitted to the high court before a competent judge. In fact, even the
respondents counsel conceded that the proceedings were irregular. Justice
Twinomujuni remarked that the record revealed a procedure completely
unknown and totally unacceptable in our jurisdiction.

4. National Enterprise Corporation V Mukisa Foods Ltd (CACA NO.

42/97) CORAM: OKELLO, BERKO, ENGWAU, JJA.
JUDGMENT OF BERKO, JA.
This was an appeal against the trail judge’s dismissal of law application by
the appellant to set aside an exparte judgment entered against it.

110
It was found that although the appellants secretary had been served with
the summons and hearing notice, he did not inform the appellant as he also
later resigned . Further still, the appellants had instructed their lawyers
who refused to enter appearance. The respondent amended her plaint but
did not serve the amended plaint to the appellants.
In the circumstances, court set aside the exparte judgment and granted
leave to the appellant to respond to the amended plaint.

SCHEDULING CONFERENCE, SCHEDULING MEMORANDUM AND

FRAMING OF ISSUES.
1. Kasirye Byaruhanga & Co. Advocates V Mugerwa Pius
(Supra in no.3 on service of hearing notices)
In that case, the trial judge made an order of a temporary injunction
without going through the hearing and the mandatory mediation and
scheduling conference.
On appeal, the trial judge’s orders were set aside

2. Anita among VAG of Uganda & others

(REF. no 6/2012) (EACJ)
The reference was made by a one, Among Anita, who was nominated to
contest in the elections for membership to the east African legislative
assembly (EALA). At the scheduling conference, parties agreed on and
against a number of issues. One of the points of disagreement/issues for
determination by the court was whether the court is vested with the
jurisdiction to entertain the reference. The parties also noted that the case
presented no possibility of mediation, conciliation or settlement.
At the scheduling conference therefore, parties agreed that the reference
raises triable issues that merits adjudication by the court.
Court found that it had jurisdiction to entertain the reference.

111
Abdu Katuntu v AG of Uganda & others (REF. NO. 5/2012) (EACJ)

The reference was brought by Mr. Abdu Katuntu who is an elected member
of parliament of Uganda and also the shadow AG in the parliament of
Uganda. The reference was seeking determination of certain issues, such as
whether all the six political parties represented in the parliament of Uganda
should send a member each to the EALA in adherence to article 50(1) of the
treaty. At the scheduling conference. Among the issues was, whether the
court (EACJ) is vested with jurisdiction to entertain issues relating to the
election of members to the EALA and also whether the applicant has locus
standi to institute the reference.
All parties had participated in the scheduling conference where they
ascertained the points of agreement and the issues for determination by the
court, parties also complied with the courts directive to correct clerical
mistakes, sign and file a joint scheduling memorandum.
In the process, one of the parties wanted court to address an issue not
raised in the memorandum during scheduling.
Court observed that it is common knowledge that the rationale for
scheduling is to agree and narrow down the issues for resolution by the
court. Thus, the applicant could not be heard to say that during the
scheduling conference, the issue thus framed did not arise from his
pleadings. Court proceeded with the issue in question as framed, agreed
and signed by both parties.
Court also found that it had jurisdiction to entertain the reference and
further that the applicant had locus to bring the reference.

3. Tororo Cement Co. V Frokina International Ltd(SCCA NO.2 OF

2001)

112
This was an appeal against the decision of the court of appeal affirming a
decision of the high court.
At the high court, no scheduling conference had taken place.
Tseekoko JSC in his judgment in that regard observed:
“I ought at this stage to note the apparent non-compliance with
the provisions of order XB of the civil procedures rules (now 0.12). during
the appeal, we were informed from the bar by counsel, that prior to hearing
of the case, no scheduling conference took place in the high court……….the
holding of the scheduling conference in civil cases is mandatory…..the
principle objective of the scheduling conference is to enable court to assist
parties to dispose of cases expeditiously by sorting out points of agreement
and disagreement or accessing the possibility of mediation, arbitration and
other forms of settling the suit.
He continued:
“ after a scheduling conference, and where it is necessary, interlocutory
applications can then be made and disposed of before the suit is fixed for
hearing, in that way, the progress of the suit is managed systematically. In
this case, it is my view that the point raised by the present proceedings
should have been properly raised and dealt with during a scheduling
conference or soon thereafter. One hopes that the holding of scheduling
conference will be a regular feature in the trial of civil cases by all trial
courts.

4. Peter Mulira v Mitchell Cotts (CACA NO. 15/2002)

The appellant sought to set aside a consent judgment. He contended that no
scheduling conference had taken place as required by now order 12 (then it
was O.X.B) CPR and that it was the duty of the judge to frame issues which
he did not and that as a result, the appellant was prejudiced.

113
However, the court held that even though no scheduling conference was
held and no issues framed, that did not prejudice the appellant in anyway.
He freely consented to the judgment whose terms were, according to the
record, carefully discussed by the parties.
The appeal was dismissed.

5. Administrator general v Bwanika and others (SCCA NO.7/2003)

ORDER , JSC.
This was a second appeal brought against the judgment of the court of
appeal dismissing the appellants appeal against a judgment of the high
court in a suit instituted by the respondents against the appellant. Letters
of administration had been granted to the respondents by the high court.

It followed that the parties had agreed on a number of documents to rely on

during the trail while at the scheduling conference.

The respondents had intended to rely on some of the documents agreed on

at the scheduling conference as an admission by the other party.

The court on that issue observed as follows:

“Documents merely agreed upon during the scheduling
conference of a trial are not themselves admissions within the meaning of
section 57 of the Evidence Act. They are documents, which parties have
agreed to rely on during the trial. It is left to the parties to adduce evidence
on such documents because they have not been admitted in evidence as
exhibits.”
6. Kakooza John Baptist V Electoral Commission and Another (SC
EPA NO. 11/2007) JUDGEMENT OF KANYEIHAMBA, JSC

114
This was an election petition appeal from the court of appeal to the
Supreme Court.
Court observed that the most appropriate time for the court to require a
party to prove an admitted fact otherwise than by such admission, would be
at the pre-hearing scheduling conference though the court may exercise the
discretion later in the proceedings.

In the results, the court held that the courts below misdirected themselves
in law and fact in holding that the photocopies of the dr forms produced by
the appellant had no evidential value.

7. Bwanika and 9 others v the administrator general S.C.C.A NO. 7

of 2013
It was held that documents which are admitted in a scheduling conference
with thereafter become part of the record and it is only their content that
can be challenged.
8. Darlington Sakwa And Another V Electoral Commission and 44
Others (Constitutional Petition no. 08 of 2006)
The petitioner contested in parliamentary elections of 2006 and lost. They
petitioned the court to make declarations on the nomination and election of
some of the respondents.

The parties had agreed on issues in the scheduling conferencing before the
registrar.

The declarations and orders sought for were granted.

9. Oriental Insurance Brokers Ltd V Trans Ocean Ltd V Trans Ocean
Ltd (C.A NO.55/95) JUDGMENT OF ORDER JSC

115
The appellants were insurance brokers and the respondent in the following
classes of insurance, fire and allied risks, burglary and motor.
Their contract was later terminated by the respondents. The appellants
sued for the amount of premiums due.
At the high court, the learned judge held that the appellants had no cause
of action as they could not sue against the respondents for premiums
relating to insurance companies.
It was held that the appellants were entitled to sue for the amounts

PRELIMINARY OBJECTIONS

1. Tororo Cement Co. Ltd V Frokina International Ltd (Supra in no.4

on scheduling) Conference framing of issues

Tseekoko observed that a preliminary point of law can be raised at any time
in the course of the trial and once it succeeds, the suit is dismissed.

In the instant, the respondent’s failure to plead the particulars of negligence

was taken as a serious point of law. That objection was upheld.

2. Translink (U) Ltd V Safitra Cargo Services Ltd and Others (HCT-
00-CC-CS-0561-2006) BEFORE HON. YOROKAMU BAMWINE.
In a suit by the plaintiffs to recover inter alia, a total of US$ 909,522.56
from the defendant, counsel for the defendants raised two preliminary
points of law; firstly that the court does not have jurisdiction to entertain
the matter and secondly that the plaintiff has no cause of action against the
defendants.
Court found that in the circumstances, court was not only seized with
territorial jurisdiction but also with jurisdiction over the subject matter of
the suit. Also alluding to previous business dealings, he found the plaintiff

116
have a cause of action. In the result, the preliminary objections advanced
were found to be matters classifiable at a scheduling conference as points of
disagreement, accordingly they are overruled by the court.

3. Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors

Ltd (1969)1 EA 696 (CAN) BEFORE SIR CHARLES NEWBOLD P, DUFFUR
V-P AND LAW JA.
At the opening of the hearing of a suit in the high court the appellant, the
defendant in that suit asked the judge by way of preliminary objection to
dismiss the suit for want of prosecution. The judge held that he had no
inherent power to dismiss the suit. The order was appealed against, but in
the meantime the suit had been heard and judgment given for the
respondent.

On appeal, the court made observations on the prevalence of improperly

raising points of by way of preliminary objection.

Law JA on pg 700:

“so far as I am aware, preliminary objection consists of a point of law which

has been pleaded, or which arises by clear implication out of pleadings, and
which if argued as a preliminary point may dispose of the suit. Examples
are an objection to the jurisdiction of the court, or a plea of limitation, or a
submission that the parties are bound by the contract giving rise
to…………………..to litigation.”

At p. 701 sir Charles Newbold, P. added:

“a preliminary objection is in the nature of what used to be a demurrer. It
raises a pure point of law which is argued on the assumption that all facts

117
pleaded by the other side are correct. It cannot be raised if any fact has to
be ascertained of if what is sought is the exercise of a judicial discretion.”
4. NAS airport services ltd v AG of Kenya (CAN)
(1959) EA 53 Before Sir Kenneth O’Connor P, Gould and Windham JJA.
The appellants had sued the respondent for damages for breach of contract
which they alleged was constituted by a tender they had submitted. The
respondent in their defense stated that the defendant will object that the
plaint is bad in law and discloses no cause of action. The trail judge ordered
that the preliminary point of law should be set down for hearing. On appeal,
the substantial ground of the appellant was that a reply of the defense was
not a point of law capable of trial as a preliminary point at all.

It was held that though the objective of a preliminary objection is

expedition, the point of law must be one which can be decided fairly and
squarely one way or the other on the pleadings and not one which will arise
if some fact of facts in issue should be proved.
(As per Windham JA)
The appeal was allowed.

5. Eng Yashwant Sidpra And Another V Sam Ngude And Others

(HCT-00-CC-CS-0561-2006) JUSTICE KIRYABWIRE RULING
This ruling arose out of preliminary abjections raised by the defendants
against the case filed against them by the plaintiffs. There were 7
preliminary objections. His lordship started by reviewing the law on
preliminary objections.
“a preliminary objection (sometimes popularly referred to as “po” at the bar)
at common law is in substance an objection in point of law. Under English
law this is what was formerly called a “demurrer” (from the French word

118
demorrer “to wait or stay” a practice abolished in England in 1883) but now
called an “objection in point of law”

That a preliminary objection enables the plaintiff to amend his statement of

claim and also it is not fatal if the objection is not raised at the beginning of
the trial.

In the result, all the objections (07) were overruled. His lordship remarked
that such objections in points of law which clearly do not dispose of the
whole claim do border an abuse of court process by unnecessarily slowing
down the trial and delaying its resolution. He advised that this should be
avoided in contemporary litigation.

He therefore ordered that the pre-trial scheduling be completed and the trial
commence.

6. Ismail Seruge v KCC & AG (SCCA NO. 2/98) (unreported)

Judgment of Mulenga, JSC

This was an appeal against the ruling of the constitutional court which
upheld the objections of counsel for the respondents thereby sticking out
the petition.

His lordship Mulenga observed that when dealing with preliminary points of
objection, it is always important and useful to have regard to the procedural
law under which they are raised. Distinction must be made between points
of objection as to the form of pleading and those as to the substance of the
case.

119
It is one thing to object that a plaint does not disclose a cause of action and
quite another action to object that the claim in the suit is not maintainable
in law.

7. IGA v Makerere University (1972) 1 EA 65(CAR) Before law AG V-

P, Lutta and Mustafa JJA

The appellant sued the respondent in tort for damages for personal injuries,
the action having been filed outside the limitation period for such an action.
Interlocutory judgment was entered for the appellant but when the action
came before the judge for assessment of damages he set aside the
interlocutory judgment and dismissed the appellants claim holding that the
court had no jurisdiction and that limitation must be pleaded.

It was held that a plaint barred by limitation is barred by law and must be
rejected, such a plaint should be rejected even though an interlocutory
judgment has been entered. It was further held that the judge should not
have dismissed the claim but rejected the plaint.

The appeal was dismissed.

8. Quick cargo handling service ltd v iron steel wares ltd and others
(HCCS NO. 328 OF 2002) BEFORE VF Musoke-Kibuuka (Judge)

THE defendants raised preliminary points of law that the plaint disclosed no
cause of action, that the suit was frivolous and vexatious against the 2nd
defendant and also that the suit was time barred by the law of limitation.

The judge apart from an order striking off name of the third defendant from
the plaint, the rest of the objection raised on behalf of the first and second
defendant were rejected.

120
Adjournments and Prosecution of Suits

1. Fred Hereri V AG (HCCS NO. 42/1995) Before Hon. Justice V.F

Musoke –Kibbuka
In this case the plaintiff claimed against the defendants for special, general
and exemplary damages arising from his wrongful arrest and false
imprisonment. It appeared that the defendant was served with summons he
filed a memorandum of appearance but did not enter appearance.
It also appeared that after serving the defendant with the relevant hearing
notice, he did not file his defense in the matter for nearly four years.
In yet another instance, the defendant was served with a hearing notice and
Mr. D.B Bireije, commissioner, civil litigation appear to have received the
hearing notice, on behalf of the defendant. He inscribed a note on the
original copy of the hearing notice, on behalf of the defendant. He inscribed
a note on the original copy of the hearing notice purporting to seek for an
adjournment claiming there was no funds to travel to Mbarara to defend the
suit.
Court held that seeking an adjournment by telephone, letter or note as the
one in the instant case does not constitute an appropriate method of
applying for an adjournment. An adjournment could not be granted on the
basis of such a note, no one knew to whom it was addressed. That even if
the defendant could not arrange for a state attorney to travel to Mbarara
within 3 days, he had the means of briefing an advocate to Mbarara to seek
an adjournment.

2. Dick v Piller (1943)1 ALLER 627

In a part heard case in the county court, counsel for the defendant applied
for a further adjournment on the grounds that the defendant was too ill to
attend and that his evidence was essential for the proper determination of

121
the case. Counsel and the defendant stated that an affidavit in support of
the application was produced. The county court judge refused the
application.
It was held that although an appeal lies upon error of a lower court and the
that adjournment is within the discretion of a judge. In the instant the
judge wrongful exercised his discretion to deny an adjournment thus
becoming appealable to the court of appeal.
The medical certificate proved that the defendant was sick; therefore an
adjournment ought to have been granted (Scott LJ)

3. MBOGO AND ANOTHER V SHAH (1968) EA 93 – CAN Before Sir

Charles Newbold P, Sir Clement And Law JA
The respondent was knocked down and injured by a vehicle which was
owned by the first appellant and driven by the second appellant at the time.
The respondent notified the insurance company of the vehicle that he
intended to hold that company liable. On failure to file a defense, the
respondent obtained judgment exparte against the appellant, which the
insurance company then applied to set aside. His application was refused
by the court. He then brought this appeal against that refusal.
It was held that the trial judge rightfully exercised his discretion to refuse
the application.
4. Mayers and Another V Akira Ranch Ltd (1971) EA 56 Before
Harris J
The applicants filed an application for the rectification of the register of the
respondent company together with an affidavit stating that certain matters
on information supplied to the deponent by a third party. The respondent
applied to strike out parts of the affidavit as oppressive, contending that the
application and that hearsay evidence was inadmissible upon an

122
adjournment, the applicants had been granted leave to file a further
affidavit.

It was held that the affidavit would be struck out since it had inadmissible
matter, parts of the affidavit were hearsay.

5. Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors

Ltd (1969)1 EA 696 (CAN) BEFORE SIR CHARLES NEWBOLD P, DUFFUR
V-P AND LAW JA.
At the opening of the hearing of a suit in the high court the appellant,
defendant in that suit, asked the judge by way of preliminary objection to
dismiss the suit for want of prosecution. The judge held that he had no
inherent power to dismiss the suit. The order was appealed against, but in
the meantime the suit had been heard and judgment given for the
respondent.
Law JA noted that to prevent abuse of the process of court and to avoid
injustice, he was of the opinion that the provisions of the civil procedures
rules for the dismissal of the suits for want of prosecution do not purport to
be exclusive and do not fetter the courts inherent jurisdiction to dismiss
suits in circumstances not falling directly within those provisions.
Accordingly in his lordships view, the trial judge was wrong in holding that
he had no inherent jurisdiction to strike out the suit for want of
prosecution.

6. Victory Construction Co. V Duggal (1962) 1 EA (SCK) 607

Before Edmonds J
In a suit between the parties, no step was taken for 3years. A notice was
issued to the parties to show cause why the suit should not be dismissed.
At the hearing, the plaintiff contended that the reference of the dispute to

123
arbitration amounted I effect to a “step taken” and that as 3 years had not
elapsed, the suit should not be dismissed.
Edmonds j held that what amounts to a sleep taken in the proceedings
could be filing an interlocutory application but not that the parties have
engaged in arbitral proceedings. But also where the parties show that they
are in arbitration court should be slow to make an order for dismissal of the
suit. The purpose of dismissing a suit for want of prosecution is to avoid
court record to be filed with materials yet parties have lost interest in the
suit.

In the circumstances, his lordship found that a dismissal order was not
justified.

7. Allen v Sir Alfred Mcalpine (1968) 1 ALLER 543

In this case, there were three appeals arising from the dismissal of a suit for
want of prosecution at trial.
It was held that, in the first and third appeals there had been inexcusable
delay due to the negligence of the plaintiffs solicitors and it was not possible
to have a fair trial after so long a time accordingly the action should stand
dismissed.
In the second appeal, there would be hardship to the plaintiff if her action
was dismissed in the interests of justice her suit ought not to have been
dismissed.
Dismissal and Re-Instatement of Suits
1. Ayub Suleiman V Salim Kabambalo (CACA NO. 32/95) Judgment
of Mukasa Kikonyogo J.S.C
At the trail, the plaintiff/appellants suit had been dismissed for want of
prosecution after the trial judge denied an application for an adjournment
by the plaintiff.

124
Aggrieved by the dismissal, the appellant filed an application for review of
the dismissal order which was also dismissed, hence the appeal.
The appeal failed, as it was found that the dismissal order was validly made.
The learned trial judge gave reasons for his decision to dismiss the
application and not to restore the suit. That he considered the 8 years the
suit had been dragging on due to adjournments granted at the instance of
the appellants. Clearly the appellant had lost interest in the case.
The appeal was therefore dismissed.

1. Vita Form (U) Ltd V Euroflex Ltd (HCCS NO. 438/09) Before
Justice Christopher Madrama.
A plaintiff suit had been dismissed for want of prosecution but there was no
proof under which rule, it was dismissed. The defendant argued further that
even the fresh action brought by the plaintiff was time-barred and should be
dismissed.
His lordship found that there was no need of considering under what rule
the application was dismissed because the defendant objection itself was
premised on the fact that it was dismissed under order 17 rule 6(2) CPR
which subjects the bringing of a fresh action to the law of limitation.
For those reasons, the defendant’s objections were overruled with costs.

2. Uganda Microfinance Union Ltd V Sebuufu Richard and Another

(HCT-00-CC-MA-0610-2007) Before Hon Mr. Justice Lameck N. Mukasa
The suit had been dismissed for want of prosecution . the applicant in this
application alleged that she had not been informed of the hearing date, that
their lawyers did not enter appearance and also did not inform them of the
hearing date.
In the interests of justice, the application was allowed and the dismissal
order was set aside and the suit re-instated for hearing inter parties.

125
3. Twiga Chemical Industries Ltd v Viola Bamusedde (CACA NO. 9
OF 2002) Judgment of Byamugisha, JA
This appeal arose out of a ruling and orders made wherein the appellant
application for setting aside the dismissed of its suit was dismissed with
costs to the respondent.
During the hearing at trial, the appellant and its counsel were absent and
suit was dismissed, the appellant contended that she was not aware of the
hearing date as it was not served with any hearing notice.
The appeal was dismissed as court found that the trial judge rightly
exercised his discretion to dismiss the suit had the appellant proved that it
was not served with a hearing notice, it would be a good ground to set aside
the dismissal order and re-instate the suit, but this was not proved by the
appellant in her affidavit.

4. Girando v Alam and Sons (U) Ltd (1971) EA 448 Before Goudie J
The appellant applied to set aside a judgment given in the absence of his
advocate a year previously. The affidavits in support of the application
showed contradictions.
It was held that sufficient cause for non-appearance at the hearing had not
been shown. Nevertheless, in order that there be no injustice to the
applicant the judgment was set aside in the exercise of courts inherent
jurisdiction.

Topic 6:
PRE-TRAIL AND JUDGMENT REMEDIES
Interlocutory/Temporary Injections Samuel Mayanja v URA (HCT – 00
- MC – 0017 – 2001
This application was heard before FMS Egonda – Ntende (Judge). It was
brought under S.14, 33, 38(1) of the Judicature Act seeking a temporary

126
injunction to restrain the respondent from issuing out further agency
notices and from banning the application tax payer from traveling abroad.
The Applicant had been assessed to income tax which he objected to, he
filed a review of the decision with the Tax Appeals Tribunal but the
application could not be heard because the tenure of the officers of the
Tribunal had expired, so it was in operative. The Applicant thus, moved to
the High Court to seek for the above prayers.
It was found by his lordship, firstly that the application was brought under
wrong provisions of the law (s.14,33 & 38(1) J. instead such an application
for temporary injunctions in interlocutory matters had to be brought under
0.41.r.1 or 2 of the CPR.
It was further found that there was no pending suit in that court from
which the applicant could be brought and that was an application for review
before a trial.

Nature of essence of a temporary injunction

2) Nsubuga & Anr v Muaawe (1974) EA 487 Before spry Ag P, Mustafa
and Musoke
The respondent rented premises from t… 2n appellant company. When he
failed to pay his rent, the company distained and the respondent obtained
from High court an exparte injunction which was later affirmed.
Mustafa JA delivered the lead judgment had been shown in that & that a
tenant may not challenge his Landlord; title at the beginning of the tenancy
but may show that it has since determined.
The appeal was allowed – that no interim injunction should have been
granted in that case as neither the conditions for the grant of a temporary
injunction had been approved.
Pendency of a suit
(3) Samuel Mayanja v URA (supra in No.1) Discretion of Court

127
(4) Alley Route Ltd v Uganda development Bank Ltd (HCT – 00 – CC –
MA – 6344/2006) Before Hon. Justice Lameck N. Mukasa.
This application was for a temporary injunction to restrain the respondent
from among others selling of the suit land.
In a loan agreement, the respondent advanced some money to tolling to
USD 387,221 to the Applicant for the purpose of setting up a biscuit
manufacturing plant. The was default, which the Applicant blamed on the
Respondents.

His lordship stated that it is a principle of law that a temporary injunction

is granted discretion of court. That this discretion must be exercised
judiciously.

On the circumstance of the case, be found the applicant had established a

friable issue – a prime facie case (as to also breached the loan agreement),
also that it would suffer … injury if a receiver was appointed to sell the
Applicant’s properties invoking powers under the mortgage and Debenture
deed. Since those two tests had succeeded there was no need of considering
the last test, of balance of convenience.
Accordingly, the application was allowed as a temporary injunction as
prayed for was granted.
Francis Kayanja v DTB (HCT – 00 – CC – MA – 0300 0 2008) Before Hon.
Mr. Justice Lameck N. Mukasa
This application was brought under 0.41 r1(a) CPR for orders that a
temporary injunction issue to restrain the respondent bank from selling off
the Applicants’ properties valued at shs 500 million which exceeds the value
of the loan of shs 100 million borrowed from the respondent bank.
Upon determining the issue raised in the application his lordship resolved
them in the negative. Applicant failed to prove the irreparable injury he

128
would suffer which cannot be compensated by damages if the properties
were sold.
Thus, exercising the discretion of court the application for the temporary
injunction was dismissed.
Maintenance of the status Quo
6) Francis Kayanja V UDT (supra in no.5)
The court found that the Applicant failed to show that he has a prima facie
case against the Respondent.
(7) Andrew Babigumira v John Magezi (HCMA No. 538/13 Before
Justice Christopher Madrama.
The application was brought under 0.41 r. 1 & 2 CPR for a temporary
injunction to issue restraining the Respondent or is agents from any
interference with or further dealings the land comprised in Kyadondo bock
194 plot 45 at Kungu, pending the final disposal of the suit and costs of the
application to be provided for.
The Respondent raised objection that the main suit was res judicata,
however, J Christopher Madrama found that the earlier sit between the
parties had been dismissed on non-compliance with, procedure but not on
merit & therefore there was no adjudication on the matters in controversy
in that suit, 5.7 of CPA as and res judicata could not apply. The preliminary
objections were over ruled with costs to abide the outcome of the applicant’s
counsels were directed to address the courts the merits of the main
application by way of written submissions.
(8) Peace Isingoma v Mgs International (U) Ltd (HCT – 00 –CC – MA –
0761 – 2006) Before Hon. Justice Lameck N. Mukasa.
The application was for a temporary injunction & brought under 0.41 r 2
and 9 of the CPR. They respondent was dealer in petroleum products and
the applicant was …. ……….Purpose of a temporary injunction is to

129
preserve the status quo until the questions be investigated in the main suit
are finally disposed off.
His Lordship found that on a balance of probabilities the applicant proved
that despite the letter terminating his dealership over the station, she on
that day continued in occupation of the station (status quo).
It was also found that the applicant’s case raised serious issue to be tried in
the main suit.
In conclusion, his Lordship found that the Applicant had already been
forced out of the station & operation I & since the status quo had already
been distorted, the applicant’s injury resulting from any forceful / eviction
or breach of the agreement was likely to be adequately compensated by
damages & the balance of convenience was in favour of the respondents.
The application failed and thus was dismissed with costs.

PRE-CONDITIONS/CONSIDERATIONS FOR GRANTS OF A TEMPORARY

INJUNCTION
(9) M/S Epsiton (U) Ltd v Dr. Joseph Kibuyaga (HCMA No. 0139/2011).
Before Hon Lady Justice Irene Mulyagonja
This application was filed under 0.41 r. CPR for a temporary injunction. The
Respondent had contracted the Appellant to Build some cottages on his p
remises; the payment was subject to variation. A dispute arose when
allegedly the cost of the building works exceeds the agreed amount in the
agreement. The respondent intended to sell off the premises, sending a..

130
the Applicant’s employees. The Applicant caveated .. suit property hence
this application for an injunction.
The court laid down the conditions for granting temporary injunction. First
that, the applicant must show a prima facie case with a probability of
success (Geilla v Gassman Brown Co . Ltd [1973] EA 358. Secondly, on
injunction will not normally be granted unless the applicant might
otherwise suffer irreparable injury which would not adequately be
compensated by an award of damages (Noor Mohammed v Kasamali Virji)
Thirdly, where a part cannot make up it’s mind after considering the above
criteria, the applicant lies in his or her favour (E.A Industries v Trafords
[1972] EA 420.
In the instant, though the applicant did …………..
Had a bailer’s lien, accordingly a temporarily injunction was issued to
retrain the respondent, his agent, servant or any persons acting on his
behalf from delineating, selling or transferring the subject property .
(16) Professor Semakula kiwanuka v Electoral Commission &
(Constitutional Application No.08/2011).
The Applicant brought the application seeking an order restraining the
respondent from nullifying his nomination to contest in the race as a
member of parliament. The application was brought by Notice of Motion
under Ant . 137 of the Constitution, rule 23(1) of the Constitutional Court
(Petition and References) Rules, S1 No 91/2005, Rules 2(2), 43 and 44 of
the Judicature (Court of Appeal Ruler) Directions.
The Constitutional Court ruled that the application lacked merit; it did not
raise serious issues for Consideration by the court. The 1 st respondent had
already nullified the nomination of the Applicant and an injunction would
be useless.

131
In the instant, court could not exercise its discretion to grant the orders
sought by the applicant. Thus, the application was dismissed with costs to
the respondents.
(Panel of justices – A.E.N . Mpagi – Bahigeine, CK Byamugisha, M.S – Arach
Amoko).
(11) Uganda Law Society & Anr v AG (const. Appl. No. 02/…
The applicants in addition to applying for leave to appeal also applied for
stay of the hea.. of constitutional petitions no.8 & No.2 of 2002 pending the
determination of the intended appeal.
(12) Geilla v Cassman Brown & Co ltd 91973) 1 EA 3581 Before Sir.
William Duffus P, Pray VP and Law JA.
In interim in junction as granted in the High Court to stop the appellants
competing with the respondent his former employer on the basis of a
covenant by him not to engage in a similar undertaking in .. of the six major
towns of East Africa. On appeal the appellant argued that the judge
should have allowed an adjournment for him to file an affidavit, that order
was defective in not specifying the period for which it was granted, that no
reasonable probability of success had been shown by the respondent a .
that it had not been shown that damage would not be an adequate remedy.
Existence of a prima facie case
(13) ULS & Another v AG (see supra in No.11).
The application was
………………Injunction restraining both Respondents’ from eviction… the 1st
Applicant at the suit property. The Applicant was married to the 2nd
Respondent but for some reason, the relationship went sour, they
separated. The 1st Respondent as another wife of the 2nd Respondent & the
suit property was personally registered in her names.

132
In determining whether or not to grant the injunction , Justice V.F Musoke
Kibuuka addressed the issue of Prima facie case at length – in which the
Applicant had to show that at the main suit there exists a genuine tribal
issue pending between the parties,. The court must be satisfied that the
dispute presented in the main suit was is shown .. but a guanine dispute I
and that the applicant has probabilities of succeeding in the main suit.
The argument in the main suit that the suit property was a matrimonial
home of the applicant and the second respondent and yet in fact the
property was registered in the 1st Respondent’s name would not constitute a
general traible issue as agents the registered proprietor (1st Respondent)
Accordingly, the application was dismissed for having no merit.

Irreparable injury/Damage Before J. Lameck Mukasa

The application was seeking or a temporary injunction to prevent he
respondent from selling off the Applicants’ property.
On the condition of irreparable damage/injury, his lordship intimated that
it is the injury which an award & damages cannot adequately
atone/remedied. That injury be substantial.
Since the loan was for purposes of selling up a biscuit manufacturing plant,
court found that if a Receiver is appointed in the sale takes place, that
would extinguish the Applicants assets including capital, goodwill and the
anticipated business acknowledgment and developments. These are losses
which are substantial and cannot be adequately atoned by in inventory
damages.
His lordship thus, ruled that in the circumstance the Applicant would be
caused irreparable loss which cannot be adequately atoned by the award of
inventory damages.
The Application was allowed.

133
Digitek Advertising Ltd v Corporate Dimensions (HCT – 00 – CC – MA –
0424 - 2005).Before Hon. Mr. Justice FMS Egonda – Ntende
Technology pending the determination of the suit. A month before the
respondent, KCC (predecessor of KCC) in an agreement granted the
applicant exclusive rights for 3 years to outdoor advertising using lighted
electronic display signs in Kampala City. The respondent also held a licence
from KCC and the broadcasting council to do outdoor advertising. The
status quo of both parties was in different places.
On the condition of irreparable injury/damage, the judge found that it was
possible to quantify the loss and put a monetary value to it in form of
ascertaining the profits of the Applicant, also by an account of the profits of
the respondent in this line of business, which probably would be a better
approximation of the actual loss, if any suffered, by the Applicant. In fact,
the applicant had done this in the head suit by seeking of an account.
The applicant failed to show that it will suffer irreparable injury that
damages or a money award cannot sufficiently atone. such injury could be
compensated by an award of damages.
The application was dismissed.

(17) Francis Kayanja v Diamond trust bank (supra in No.5) above.

The Applicant, therein failed to prove the injury , he would suffer which
cannot be compensated by damages if his properties were sold.
Balance of convenience

(18) Route Ltd v Uganda Development Bank (supra in no. 15)

His Lordship, justice Lameck N. Mukasa explained in that case that, the
condition of balance of convenience is applied if the .. conditions of
irreparable injury and prima facie case have failed. That is, the court looks

134
at the circumstances and in whose favour it is suited to grant the temporary
conjunction.
Temporary Injunction Against Government AG v Osotroco Ltd (CA CAA
No,32/2007). CORAM: Mpagi – Bahigeine, JA, C.N.B Kitumba & S.B.K
Rav…
The respondent claimed to be the registered proprietor of the su. Land at
Plot no.69 Mbuya hill, Kampala which the appellant’s employees (employees
of Minister of Information) were occupying and refused to leave. At trial,
Justice Egonda Ntende held infavour of the respondents, making an order of
eviction and also holdings that s.15 then (now s.14) of the Governments
proceeding Act in so far as it barred injunction and orders of vacating land
was against the 1995 Constitution and not applicable. On appeal..
In the lead judgment of A . E. N Bahigeine, it… the judgment and orders
of the H/court were affirmed. That after the 1995 Constitution which
guaranteed freedom, the law has to be constructed in line with thinking or
norms of progressive societies . the rights, powers to communities of the
state are .. immutable anyone, the respondent was entitled to his property.
The trial Judge was moving under A.273 and did not encroach on article
137 as alleged by the Appellant.
Opposing ApplicatIon

(20) Energo project v Br. Kasirye Gwanga and Another (HCMA

No.568/2009)
Before Justice Joseph Murangira
The application was seeking order that a temporary injunction issue to
restrain the respondents or through their agents and servants from

135
alienating or ensuring alienation of the suit property by canceling the
certificate of title.. Until determination of the main suit.
The 2nd respondent was not represented, counsel for 1sr respondent
purported to submit on her behalf but could rule him out since he had as
obtained circumstances to oppose the application on her behalf.
Further still, both respondents refused to file affidavit in reply, opposing the
application. In such scenarios, the court observed that the parties are
presumed to have conceded for the application.
The Application was allowed with all the orders sought.
Interim orders
Souna cosmetics Ltd v the Commissioner customs URA and Another(
HCMA No. 424 of 2011) Before Hon J. Christopher Madrama.
The applicants application was of an criteria order of injunction to restrain
the respondent, its servant and agent, or assigns from auctioning as
threatened, disposing off, alienating or in any way dealing with the
applicant assorted cosmetics products seized by the 1st Respondent till the
hearing and final disposal of the m.. application

His Lordship observed that an applicant for an interim injunction is not an

application on the merits but meant to preserve the right of appeal or the
right of hearing on the merits which right may be curtailed if the status quo
is changed.
An interim order of injunction are granted in the instant case pending the
hearing of the main application for a temporary injunction merits. This is
because according to His lordship, these was an evidence that the good
(cosmetics) are perishable or would determine in quality or value.

SECURITY FOR COSTS FURTHER SECURITY FOR COSTS

Principle governing security for costs

136
 1. DFCU & Ors V N.G General Ltd
(HCMA No 1527/1999)
Before Hon Lady Justice C.K Byamugisha
2. This was an application brought under the provision of section 404 of
the companies Act and order 23 rules 1 and 3 CPR seeking that .. the
Respondent to pay security of costs so that the case it losses the suit,
the defendant/ Applicant can be settled in costs
Byamugisha .. found that this was not a case in which an order and
security costs should be granted. The suit property was a ginnery which
was pledged as security when the respondent get the loan from the
appellant. at the hi.. suit, the respondent was challenging the appointment
of a receiver of the property.
B.. the affidavit evidence, it was found that the liquidator were in possession
of the suit property (ginnery) which was valued at a billion shillings, the
application liquidators could sell off that ginnery to recover the debt due to
the appellant . this would even settle any costs the applicant was likely to
incur at the main suit. Thus, there was no need of making an order for the
respondent to pay security.

(2) John Murray (publishers) Ltd & 10 others v. G.W Sekindu &
Another (HCCS No. 1018 of 1997). Before . Hon Principal Judge Mr.
Justice J. H Ntagbote
This was an application under 0.23 r.1 CPR requiring the respondent
plaintiff to furnish security for costs on the sum of Ug shs 25M/= to secure
the defendants costs in case the plaintiffs to.. the suit against the
defendant
The application granted his Lordship found that the respondent was based
abroad in UK which was outside the jurisdiction of the court.

137
Further still, the respondents had not r.. any evidence to show if they have
any property in UK. Even through Uganda to UK had a system of reciprocal
cores of judgment, it would very costly to the judgment creditor. The court
refused to appl.. the decision in Kapedia v Laximidas (1960) which decided
that oath in every case in which the plaintiff has no property in the
jurisdiction that on order for security for costs is granted. In the lavimida
case a decree obtained in any court Kenya could be transferred to Zanzibar
because of the Extension of Judgments Pea.. Zanzibar (here the proximity
was small).
Exercising his discretion, the respondent was ordered to deposit security
for costs of 1.M to 25 million as prayed by the Applicant.

(3) Muwangala farers & Groups Ltd v Kayanja & Ors (1971) EA 108
(CAK) Before Sir Dermot Sheridan CJ
The respondents applied for security and costs including security for costs
in the court below on the grounds that a receiver of the property of the
appellant company had been appointed.
His Lordship held that in such circumstance of the case, the appellant
would be ordered to give security and the respondents’ costs of the court
below including the cost of the application for stay of execution (pg 110).
Within 21 days, failing which the appeal is dismissed with costs without
further orders.

(8) G. Combined (U) Ltd v A.K Detergents (U) Ltd

(SCCA) No 34 of 1995).
This was in appeal against the order of the High Court requiring the
appellant to furnish security for costs in High Court Civil suit in which the
appellant was the plaintiff.

138
The Supreme Court allowed the appeal, the inflated security for costs
ordered by the trial Judge was reduced. Oder JSC held as follows;
“In the results, I would partly allow this appeal, and order that the appellant
should furnish security for the costs in the sum of shs 30m/ and that the
appellants should not proceed with suit in the high court.
Court until the security for costs so ordered is paid in court..”
In that case, order JSC was of the view that the determining factor in
allowing or not allowing such application for security for costs were the
prospect of success, whether or not the applicant was likely to succeed in
the substantive case. That it may be a denial of justice to order a plaintiff to
give security for costs of a defendant who has no defense to the claim.
Security for costs and further security for costs in the supreme court.

(1) Kakoza Jonathan & Another v Kasaala Cooperative society Ltd

(SCCA No 13/2011).CRAM Jonathan Tumwesigye, JSC
This was an application seeking to compel the respondent to pay past
security for costs relating to suits in the High Court, court of Appeal &
further for the appeal in this court.
The court took time for consideration .
In application for further security for costs past costs the burden lies on the
applicant to show why that relief should be granted.
The court found that the applicant had not shown why security for costs
should be ordered to thus it was found that it would not be fit to order
security for further costs or for past costs in the application.
In the result, the application was dismissed.
Goodman Agencies Ltd V Has Agencies (K) Ltd (SC) Ruling of Okello,
JSC.
This was an application brought under Rule 10(3) of the supreme court
Rules, .. 404 of the companies Act, cap 10 (than) for orders that the

139
Respondent furnishes security for costs for the past costs and also costs of
the appeal.
J.Okello found that even though ground one that the Respondent has no
known asset or address in Uganda or Kenya had been fulfilled this made the
applicants case for ordering security for costs stronger, houses, it was
subject to fulfillment of other factors He therefore found further that the
applicant had failed to prove that the respondent will not succeed in his
appeal.

He therefore concluded that in the circumstance it was not fit and proper to
order the respondent to give security for further costs of the applicant which
has no likelihood of success or its defense against the respondents’ appeal.
The application was dismissed

(3 The bank of Uganda v Joseph Nsereko & 2ors (Civil Application

No.7/2002) – SC Before: J.N Mulenga J.S.C

This application was brought by notice of motion under rule 100(3) of the
Supreme Court Rules, in which the Bank of Uganda asked for orders, that
the respondents give security for costs incurred in the lower courts, and
further security for costs in this court, in respect of civil Appeal No .1 of
2002.

The facts the Respondents were former employees of the Applicant who
sued the Applicant in the High Court and terminal benefits so they
succeeded on appeal, the Court held in favour of the Applicants ordered
costs of the H/court and COA to be met by the Respondents. The bill of
costs was also taxed and now was awaiting payment. Subsequently, the
Resp appealed to the SC from COA decision. The Applicant also asked for
further security of costs for this appeal.

140
His Lordship started by pointing out that the burden to prove that an
application or order for security for costs lay with the Applicant.

In the instant, there was a pending appeal in the Applicant need not have
rushed to have the awarded costs taxed and recovered. He did not show
that the Respondent’s appeal would not succeed. And further it was not
proved that the Respondents did not have known address or asset in the
country.

In the result, the Application was dismissed.

(4) Bank of Uganda V Bronce Arabe for (SCCA NO 23 of 1999)

Gram: Mulenga, JSC

This was a reference to a single justice of Supreme Court against the

decision of a taxing officer. Brief facts In supreme court referenced a
decision of the court of Appeal which had anonymously reversed a decision
of the High court c.. in exercise of discrete to reinstate the order of the
High court reinstating a suit dismissed for failure to furnish security for
costs.

His Lordship allowed the Reference, and only in K.O.U danc

No 20/98. It was held that the absence of property within the jurisdiction of
the, court was sufficient to grant of an order for security or costs.

(5) GM Combined (U) Ltd V A.K . Detergents (Supra in no . 4 under

principle for s of s)

Oder, JSC held in that case that the determinant factor in allowing or not
allowing an application or further security of costs or past costs was the

141
prospect of success, whether or not the applicant as likely to succeed in the
substantive case.

(60 Keary Developments Ltd V Tamac Construction ltd and Another

(1995) 3 ALL ER 534

This was an appeal against the trail courts dismissed of the defendant
application for security for costs from the plaintiff, Keary Developments Ltd.

The court alleged to the following that the burden of proof is on the
applicant to prove that his/her application for security for costs should be
allowed; the court will look at the probable degree of success of the suit;
court is not bound to award the full security for costs prayed for, the court
will not be prevented from ordering security simply on the ground that it
should deter the plaintiff from pursuing its claim instead this court must
balance the injustice to the plaintiff prevented from pursuing proper claim
by an order for security against the injustice to the def. if no security is
ordered. In the result, the court (as per peter Gibson i..)

Allowed the appeal and made an order for security but in a sum
considerable reduced from that required.

Security for costs and further security for costs in the court of Appeal.
(1) Dr. Nabwire Frank v Electoral Commission and Another
(Elections Petition no 04 of 2011) Justice added Mwangusya

It was a context of the election of the 2nd Respondent as MP for Kagoma

county.

Instead, court found that the second Respondent was not vividly elected in
thus ordered are election fresh election).

142
On costs court found that the Electoral commission takes full responsibility
for or the mismanagement of the electoral process I in the polling stations
that led to the nullification of the election.

Thus it was ordered that the 1st respondent meets the costs of both the
petitioner and 2nd respondent in the petition.
(2) Pamzanali Mahamed v kibona enterprises Lady justice L.E.M
Mukasa – Kikonyogo, DCJ.

An order for security for costs had been made against the appellant at trail.

From that order he appealed however the appellant also affirmed the lower
constituent.. decision. The court found that the appellant.

Had not proved that the appellant’s suit had .. likelihood of success
nevertheless, her Lordship asserted that the discretion of the trail Judge
would only be interfered with to reduce the award in security and costs from
80 million to 19 million as had been proposed by Hon Justice S.G Engwau.
J.A.

In the result, the court found that he learned trial Judge correctly applied
the principles governing the liability to furnish security for costs.
(3) Amerit Garyal V Hascho.. Goyal & ORS (C.A No. 109/2004)
Ruling

In an application for strike out a suit, the applicant had fai.. objection
relating to appointment of legal representative of 1st Respondent who had
passed on.

The objection was upheld and the application was of a legal representative
for respondent No.1.

143
Each party was to bear its own cost

FAILURE TO DEPOSIT SECURITY FOR COSTS

Amrit Gayal V Harichand Gaal and ors (supra)

(1) The effect is that the suit will be dismissed.

Bank of Uganda V Banco Arabe Espanyol (supra in No.4)

IN that case, it was observed that failure to report security as the court
directs , results into dismissal of the appeal constituted. The purpose of
security for costs is to ensure that the defendant respondent whose defence
has succeeded is compensated in their costs.

Other Relevant Authorities or security for costs.

The defendant applied for security for costs on the ground that the plaintiff
was ordinarily resident at Zanzibar and outside the jurisdiction of the court.
The plaintiff submitted that no order should be made as by s…3 of the
judgments extension Decree, cap 23, laws of Zanzibar, a decree obtained in
any court in Kenya could be transferred in Zanzibar, for execution as if the
decree had been obtained in Zanzibar.

The court refused the Application and decided that not in every case in
which the plaintiff has no property in the jurisdiction that, an order for
security for costs is granted Because of the extension of judgment . Decree
of Zanzibar, there was no need for ordering an order for security for costs..

ARREST AND ATTACHMENTS BEFORE JUDGMENT 0.35

144
(1) Stanbic Bank Uganda Ltd v New Makerere Kobil station Ltd (HCT –
00 – CC – MA – 565 – 2010).Before Hon Justice Geoffrey Kiryabwire

This was an application under 0.40 r, 8 and 12 CPR for orders that Bus
Registration No. UAK 948T which was attached by order of this court be
released from attachment.

The Applicant contended that it is not a party for the main suit (HCCCS 425
of 2009) and that it was erroneous for the said bus to have been attached.
That the bus of all times belonged to the Applicant as a lesser.

The Judge found that the bus logbook shows that it is owned by the
Applicant. He also remarked that no attachment before judgment can issue
where it affect the rights of third parties in the instant, the rights of the
Applicant under the lease agreement were being affected.

According to the bus No UAK 948T was ordered released from attachment.

Rev. Fa Bikangiso v New Makerere Kobil Station(HC -00-CC-MA-

102010)

This application was also before Justice Kiryabwire in respect of the bus,
UAK 948T to be released after its attachment pending judgment in civil suit
No.425 of 2009. The ground are that the bus is not liable to attachment
since at the time of attachment it did not belong to the Defendant in the
head suit M/S Alliaz Tours and Travel Ltd but rather to Rev. F Bikangiro
the Applicant objector who had bought it from the Deft called the
owner/lease).

145
Justice Kiryabirwe observed that a lesser without special authority to the
country which in this case has not been shown cannot sell what is owned
by a lesser.

Accordingly, the applicant was found to have failed to establish that on the
date of the attachment, he was in possession either actual or constructive of
the said has.

The application for release from attachment was dismissed with costs.
(2) UEB (in liquidation) v Royal Van Zanten (U) Ltd (HCR -00-CC-MA-
0251-2006)Before Justice Yorokamu Bamwine

The respondent had sued the appellant, the in the process, the respondent
learnt that the appellant was in the process of winding up, thus, the
respondent made an application before the learned deputy Registrar of the
High Court who ordered that the appellant deposits shs 150,000,000/=
which was the value of property belong to the Appellant that it be attached
in favour of the respondent pending disposal of the main suit. From this
order, the appeal lies.

Justice Yorokamu, Bamwine who entertained the appeal contended that

he appellant is a statutory cooperation which was in the process of winding
up. The law of divestiture would take its course and in any case the
appellant was found unable to pay it’s debts funds could be derived from
the consolidated fund, in which case the tax payers could be indirectly
paying.

He faulted the deputy Registrar for making orders of attachment against

the appellant. Accordingly, intent was important for the respondent to
prove that the appellant in the process of winding up was already selling off

146
its properties. The impugned order by the learned. Deputy Registrar was
set aside.
(4) Potgieter v Stamberg & Anr [1967[ EA 609. (CAN) Before Sir
Charles Newbold P, Duffus and Spray JJA

The respondent sued the appellant for the dissolution of a partnership

between them and was also granted orders for arrest of the appellant before
the final judgment. Subsequent to the order for arrest there was some
material on record form which a judge could infer that the defendant would
shortly be leaving Kenya t and also infer that he was doing in to defeat the
respondents’ claim.

The Appellant bought the appeal to set aside the final Judge’s orders made
in the exparte application.

Sir New bold found that there was no resistance that the appellant
/defendant was about to leave Kenya that the Judge was clearly wrong in
making the exparte order for arrest of the defendant on the material be then
had before him.

Accordingly, the appeal was allowed on this ground

Topic 7

JUDGEMENT ORDERS, DECREES AND COSTS

1. Paul Mwiru V hon Igeme Nanthan and ORS (CA EPA No 6/20)
Judgment of Byamugisha , JA

This was an appeal against dismissal of an election petition before the trial
judge. The grounds of the petition were. Electoral mal practice such as

147
bribery were effected by the 1st respondent personally, the 1st respondent
did not have the minimum qualification for nomination as Member of
Parliament and also that the trial judge erred in the way she made orders as
to courts.

Court found that the 1st respondent lacked the minimum qualifications to
contest for the elections since the certificate of equivalency was nit issued
after consultation with UNEB by the 3rd respondent (NCHE) as required by
law.

It was further found that the 1st respondent is the one who personally
distributed the said machines (wilding machines and compressor machines)
thus committing an illegal act of bribing voters. This act alone was sufficient
to nullifying the 1st respondent’s election as Member of Parliament.

On the issue of costs, court found that the trial judge rightly exercised here
discretion to make an order that parties bear their own costs. She had given
reasons under S.27 CPA; award of costs is at the discretion of court but
must be made based on the facts of the case.

2. Col (Rtd) Dr Besigye Kizza V Museveni Yoweri K (SC EP Nov 1/

2001) JUDGEMENT OF THE COURT
The petitioners petitioned the Supreme Court under then presidential
elections Act 2000 challenging the result of the presidential election to
seeking an order that Museveni declared elected as president, was not
validly elected and the said election be annulled.

148
 The petition was dismissed upon court finding no merit in its.
However, on the issue of costs, court ordered that each party hears its
own costs.

3. Departed Asians property custodian Board V Jaffer brothers Ltd

(SCCA No 9/1998) Kabyeihamba , JSC
At high court, judgment and decrees were made in favor of the appellant, on
appeal by the respondent then; the court of appeal reversed the trial court’s
decision by setting aside its decision.

On appeal now to the Supreme Court, the appellant was asking court to set
aside the judgment of the court of appeal, among others that since the CoA
found that the appellant had no cause of action then no order ought to be
made against it.

His lordship found that the manner in which the 2nd, 3rd defendants came to
be joined in the plaint and against the wishes of the respondent, the trial
judge arced in awarding costs to all the three dependents against the
respondent. Acc to S.27 CPA, costs are awarded at the discretion of court
but it must arise from the facts of the case.

However, since other grounds, ha failed the appeal was dismissed.

Consequences of judgement and Res judicate (S.6 and 7 CPA Cap 71)

1. Charles Majambala V Stanbi Bank (Civil Ref No 69/) CORAM: HON A-

E MPAGI BAHIGIENE CA

The dispute was that the applicant was challenging the sale of his property
by the dependant at some time (about 5 years), the applicant though of

149
applying for extension of time to appeal after dismissal of his suit. The
application was granted. Thereafter, he filed a number of applications.

This was a reference to the a single judge (Mpago-Bahigiene)

His lordship found that under S.7 CPA, the learned registrar had rightly
concluded that the matter between the applicant and defendant in civil
application No 84 of 2007 had been the subject of earlier applications and
was accordingly res judicata. This reference was thus dismissed.

The judge sympathized with the applicant for mistakenly thinking that
litigation could go on indefinitely on one’s own terms.

2. G.W Wanendeya V Stanbic Bank (u) Ltd (HCT-00-CC-CS-0486-2005)

Before Justice Egonda Ntende

In a suit for special and general damages against the defendant, the
defendants counsel raised objections that the suit is barred by the doctrine
of res judicata (S.7 CPA)

It was found that the suit was res judicata in so far as the plaintiff had filed
in the same court civil suit no 437 of 2001 and civil suit no 437 of 200 and
civil suit no 75 of 2004 dealing with the same subject matter, and which
had been decided finally by the courts.

The plaintiff was advised that the option he had at that state if dissatisfied
was to appeal against the decision, and not file another action.

3. Kamunge and ORS V Pioneer Assurance Co. Ltd (1971) EA 263 (CAK)

Before spry Ag p, LAW Ag V.P and Mustafa JA

150
The respondent was the mortgage of land owned by the appellants. In an
action in the H/C the appellants claimed that the mortgage was time barred
and that the mortgage was never in possession of the mortgaged land. The
high court held that the mortgage was not time barred, an appeal from, this
decision was dismissed. The appellants filed a further action claiming
substantially the same relief and the respondent contended that the claim
was res judicata. The H/C dismissed the case and the appellants appealed.

It was held that the defense raised was substantially the same as in the
earlier case and the claim was res juduicata against the appellants.

4. Saleh Bin Kambo V Administrator general Zanzibar (1957), EA 191

(HCZ) Before Windham CJ

In a suit, the defendant raised preliminary objections since the plaintiff was
the same party in two suits as administrator General.

However, court dismissed the defendants contention holding that the place
as to res judicata must fail that although in each of the two cases the
(plaintiff as) administrator general was a party, he was not in both cases
“litigation under the same title” for the purpose of s.6 civil procedure Decree
in the former case he sued as administrator of the estate of the late
Hassanbhai and is the present case he had been sued as administrator of
the late Kassamali.

Execution and stay of execution

1. Jimmy Tumwine V Frank Nkurunziza and Another (HCT -00-CC-

CS-479-2002) Before Hon Justice Geoffrey Kiryabwire
The plaintiff had bought some land which became the suit land,
subsequently; the same land was sold to the defendants. the question for

151
the courts determination was whether the 1st defendant is liable to refund to
the plaintiff the sum of shs 48,000,000/= or any part therefore on this case,
no fraud was pleaded or proved against Alamanzane Bwanika and as the
registered proprietor of the suit land he had saleable interest in the suit
land which were validly attached in execution.

The bailiff had concluded an execution sale in which the suit property had
passed to the plaintiff.

In the result, his lordship stated that the plaintiff is deemed to have had
constructive notice of the 2nd defendant’s interest in the suit land.

2. NSSF V Byamugisha Advocates (HCMA No 0792/2002,) Before

Hon Mr. Justice W.M Musene
In this application, the applicant sought orders inter alia that an exparte
judgment against her be set aside and further that execution decree entered
be stayed.

It was found that the judgment exparte had been rightly entered.

Court also declined to order staying of execution decree in civil suit No

528/2012 because the applicant did not fulfill the conditions for stay of
execution. The applicant didn’t prove that she will suffer substantial loss or
not (0.43 r.4 (3) CPR) when the execution is not stayed. It was noted further
that in this case, the applicant will be paying for legal services rendered by
the respondent, which is value for money and therefore no substantial loss
of such.

Accordingly stay of execution prayer was disallowed.

3. Charles Nyanzi V Margaret Nanyonga (CACA No 12.2010) RULING

OF BART. M KATUREEBE, JSC

152
The applicant instituted this application by way of Notice of Motion under
Rules 2(1), 6(2) (6), 42 and 50 of the rules of this court (SC) seeking an
interim order to stay execution in civil Appeal No. 42 of 2006, pending the
hearing of the main application by which the applicant seeks a final order of
stay of execution.

His lordship began by alluding to the fact that an application for an order to
stay execution cannot be heard before a single justice and that he would not
have jurisdiction. Nevertheless, practice dictated over time that in the
interests of justice, an interim order could be granted in the period before
the main application for stay is heard y a full court. In the instant, the
respondents were not selling the land, thus the applicant failed to convince
court with compelling reasons for the grant of the interim order. The
application was dismissed.

4. Mehta V Karsandas 2 Bros (1958) 1 EA 694 (HCU) Before Lewis J

The plaintiff obtained an order for attachment of salary of a partner in the
defendant firm. The order was served on the employer who failed to comply
with the order. The plaintiff then obtained an order requiring the employer
to show causes why the amount of the debit salary which should have been
paid over to the plaintiff should not be recovered by attachment of the
employers property.

It was argued on behalf of the employer that an employer on whom a notice

of attachment of servant’s wages had been served is entitled to claim, that
he himself has a lien on such wages.

The judge ruled that there is no such thing as lien on wages; the employer
must pay to the plaintiff a moiety of the debtor’s salary from the date when
the order for attachment served upon the employer.

153
 5. Patel v Patel and Amor (1958) 1 EA 743 (HCU) Before Lewis J
The plaintiff who was a judgment creditor. Attached the first defendants,
lorry and the second defendant applied to the court preferring a claim to the
long under a bill of sale dated August 24, 1956, this so being subsequent to
the filing of the plaintiff’s suits. The lorry was sold pursuant to the
attachment, but the second defendant filed summons under 0.9 r. 15 CPR,
objecting the attachment and the district registrar, taking its view that the
plaintiff had failed to show that the bill of sale was not genuine, ordered
that the proceeds of sale of the lorry should be subject to the second
defendants claim under the bill sale dated August 24, 1956 was given for
the purpose of protecting the lorry and defrauding execution creditors
generally , according the plaintiff had established that the bill of sale was
void.

6. KIU v Steel Rolling Mills Ltd and ORS (URA and AG) (HCMA 0509-
2006) Before Hon Mr. Justice EMS Egonda Ntende
The plaintiff contracted with the 1st defendant to supply it with assorted
steel. Later, the contract was frustrated as URA stopped the 1st defendant
from supplying the plaintiff. The plaintiff claimed the sum of shs 8, 269,
553, 502, 00 from the defendants. The pl successfully obtained an
execution order to attach the said money.

Court found that the transaction in question was created to support the tax
exemption on the steel by the government that was supposed to have been
supplied to the judgment creditor by the judgment debtor. This was inform
of VAT.

Recondingly the said funds were not liable to attachment. The order of the
registrar of attachment was set aside.

154
 7. The standard Bank if South Africa v Sen Kabuge (1960) 1 EA 13
(HCU) Before Sheridan J
A judgment creditor applied to the court for an order that the debtors land
be sold by private treaty instead of public action, on the ground that a
greatly enhanced price would be realized by such a sale.

It was ruled that a court in Uganda has no power to order a sale of a

judgment debtor and by private treaty. The application was dismissed.

8. Mandavia v Rattan Singh (1968) EA 146 (CAN) Before Sir Charles

Newbold P, Spy and Duffus JJA.
The appellant (a judgment debtor) applied to set aside the sale of three
proprietors which had been attached and sold in execution of a judgment
debt on the grounds of irregularities and fraud in the conduct and
publishing of the sale. That the proprieties had been sold at a less value and
therefore he was prejudiced. His application was entertained before Miles J,
who partly heard the application and he retired from the bench. Farrell F
who continued with the trail dismissed the application. On appeal; the
appellants argued that the registrar had no jurisdiction to order the sakes
and further that Farrell J erred when he dismissed the application.

It was held that Farrell J had jurisdiction to continue with the hearing no
injustice had been accused to the Appellant by selling the properties at
these prices and that the deputy registrar had jurisdiction to order the
sales.

9. John Verje and Another V Simon Kalenzi and ORS (CACA No 71 of

2009) Kitumba , JA
This was an appeal against the success of objector proceedings in which all
movable and immovable properties of the judgment debtor were released

155
from attachment upon to order of the trial judge on ground that the
respondent were in possession as receiver mangers. Thus, this was an
appeal against the ruling of the trial judge.

The court unanimously agreed to dismiss the appeal. The court observed
that once a receiver had taken possession of the property before
attachment, that property cannot be attached by the order subsequent
degree holders against judgment debtor. By virtue of possession, the
receivers also acquire the right to commence action in court in their own
right to protect their right of possession.

In the instant the receivers had locus to commence the objector proceedings
since the said properties were not liable to attachment as they were in the
hands of the respondents as receivers and mangers of the judgment debtor
company for the benefit of East African Development Bank as debenture
holders and also had a fixed change on the said properties.

10. The Cooperative Bank Ltd (in liquidation) v Muganwa Sajjabi

and ORS (HCMA No 716 of 2005) Before Justice Yorokamu
Bamwine
This was an application brought by some 8 objectors seeking an order
releasing the suit property from attachment and thereby being sold.

The facts were that, the respondent on the strength of letter of

administration pledged the suit property as security for a loan be got from
the plaintiff judgment creditor, which loan he didn’t pay back.

156
Bank of Uganda as liquidators of the plaintiff bank had successfully
obtained a warrant of attachment of the suit properly and were preceding to
sell it off when the objectors made an application against it.

His lordship stated that 0.19 r.55 CPR implores court to investigate the
objection by looking at whether the objectors had an interest in the property
at the time of attachment and that the objectors were in possession of the
property at the time of its attachment.

In the instant, court found that at the time of attachment, the objectors /
applicants were in possession of the suit property and having interest in the
suit property. The application was allowed and the suit property was
ordered released from attachment.

11. Voi Posho Mill v Kenya Sisal Estate (1962), EA 647 (SCK)
Before Webber J
The judgment debit applied to the court under S.34 (1) and S.44 (1) (b) (ii) of
civil procedure ordinance for an order that two motors and two tractors
seized under a warrant of attachment should be released from attachments
on the ground that they were implements of husbandry and agriculture not
exceeding shs 10,000/= in value and not liable to attachment. The
judgment debtor was an agriculturalist.

It was held, inter alia, that the motors and tractors seized were all
implement of husbandry and agriculture used in connection with
agricultural farming and as such were not liable to seizure if the applicant
was an agriculturalist.

12. Shah v AG No 2(1970) 1EA 523 (HCU) Before Jones, Mead

and Wambuzi JJ

157
The petitioner obtained judgment against the government in a suit, he
obtained a certificate of order from the high court but the treasury officer of
Accounts, the official responsible for payment refused to accept service of
the certificate. The petitioner then applied for mandamus on the officials
responsible for payment. The AG applied to dismiss the application relying
on S.2 (1) of the local administrations (Amendment) (No.2) Act, 1969, which
had been passed after the judgment had been given. The petitioner claimed
that the relevant provisions of the Act were unconstitutional as they
deprived him of property without compensation.

This question was referred to the constitutional court, which held that the
Act was unconstitutional in so far as it deprived as aggrieved party of
protection of the law, provided for deprivation of property without
compensation.

TOPIC 8

CORRECTIVE AND POST JUDGMENT REMEDIES SLIP RULE.

1. Fang Min V Dr. Kaijuka Mutabaazi (SCCA NO. 6/2009)

This was an application under rules 2(2) 35 and 42 of the rules of the
supreme court seeking that this court recalls its judgment to be corrected
under the slip rule “so as to remove the order for payment of the market value
of the suit house in lieu of specific performance”

Citing the case of orient bank v Fredrick Zaabwe and another, civil application
no. 17 of 2007, court listed the circumstances for a slip rule to apply as;
i) There the court is satisfied that it is giving effect to the intention of the
court at the time when the judgment was given; or

158
ii) In the case of a matter which was overlooked, where it is satisfied
beyond doubt, as to the order which it would have made had the matter been
brought to its attention.

Court found that in the instant case, the intention of the court at the time was
to restore the judgment of the time was to restore the judgment of the high
court, particularly of specific performance, therefore making orders for
payment of the market value of the suit house was a slip since it was not even
include in the responses prayers the application was allowed.

2. Orient Bank Ltd v Fredrick Zaabwe and Another (SCCA NO.

17/2007)
The applicant was asking the court to recall its judgment in civil appeal no. 4
of 2006 so as to set it aside or alter it (that is applying the slip rule). That
court should alter its earlier orders from aggravated damages to general
damages that it could not have been the intention of the court at the time of
making the judgment to make such orders.
Court failed to apply the slip rule and dismissed the application because the
conditions for the slip rule to apply were not fulfilled.

APPEALS, REVIEW AND REVISION

REVIEW OF DECREES AND ORDERS

1. Joyce L Kusulakweguya V Haider Somani And Another

(Misc APPL no. 40/2007 Before the Hon. Justice Geoffrey Kiryabwire
This was an application under order 46 rules 1 and 4, order 52 and sections
82 and 98 of the CPA for a judicial review of his lordship ruling and orders in
civil application 234 of 2005, which was an objector proceeding- which was
disallowed.

159
His lordship allowed the application to succeed because the review related to
the discovery of new matter or evidence and this uis for the purpose of
guarding against injustice and abuse of court process because the court did
not have the correct evidence before and the hearing due to no culpable fault
of an aggrieved person. In theb instant, court did not have evidence that block
208, plot 1098 was part of a public highway road and the applicant had no
knowledge of this at the time of the hearing.

2. Hassanali v city motor accessories ltd and others (1972) EA H23

Before spry V-P Lutta and Mustafa JJA
A consent judgment made against the respondent provided for payment by
installments and that in default of any payment the full amount would
become due. A cheque which was presented for payment on the last day was
dishonored. The appellant there upon claimed the full sum. The respondent
attempted to show that their bank had been at fault. The judge in his ruling
stated that the respondent should be deemed to have defaulted.
On appeal;
Spry v-p who delivered the judgment of the court agreed that there was no
evidence that the bank was at fault. That sympathy for a debtor is no reason
for depriving a creditor of his rights. And since the judge’s rulings were
erroneous, these were set aside.
The appeal was allowed.

3. National Bank Of Kenya Ltd v Njau (1995-1998) 2 EA 249(CAK)

Before Kwach, Akiwumi and Pall JJA
The appeal arose out of orders of the trail judge denying to review his order
denying a temporary injunction claiming he was exercising his discretion.

160
The question before the court was whether an order of review cannot be made
where discretionary powers are exercised.
It was held that a review may be granted wherever the court considers that it
is necessary to correct an apparent error or omission must be self-evident and
should not require an elaborate argument to be established. It will not be a
sufficient ground for review that another judge could have taken a different
view of the matter. Nor can it be a ground for review that the court proceeded
on an incorrect exposition of the law and reached an erroneous conclusion of
law. Misconstruing a statute or other provision of law cannot be ground for
review.
In the instant case, the matters in dispute had been fully canvassed before the
learned judge who made a conscious decision on matters on controversy and
exercised his discretion in favor of the respondent. if he had reached a wrong
conclusion of the law, it could be a good ground for appeal but not review. An
issue hotly contested cannot be reviewed by the same court which had
adjudicated up it.
The appeal was dismissed

4. Adonai v Mutekanga (1970) EA 429 Before Sir Charles Newbald p,

Duffus Vp and Spry JA
In an inheritance action, a vesting order was made in favor of the
respondents.
On application by the appellant, the vesting order was vacated. On appeal by
respondent (now appellant), it was contended that the proper procedure would
be an application for review made under 0.42 r 1 CPR (then)
The appeal was partly allowed, court holding that the proper procedure was
application for review. This is so because, it was a specific procedure provided
by the rules.

161
However, court went further to hold that the existence of a specific procedure
shall not oust the jurisdiction of court.

5.Erimiya Serunkuma v Elizabeth Nandyose (1959) EA 127 Before

Bennnett J

This was an application by the appellant for review of a judgment of the high
court disposing of an appeal from the principal court of Buganda. The
application was made under 0-42 r.1 of the CPR and the question argued was
whether the court had jurisdiction to hear the application.

The application was dismissed, the court held that the legislature intended
that the appellant jurisdiction of the high court under the Buganda courts
ordinance should be regulated by rules made under that ordinance and not by
rules made under the civil procedure ordinance and therefore the court had
no jurisdiction to entertain the application for review.

5. YUSUFU v Nokrach (1971) 1 EA 104 (HCU) Before Thadke J

The respondent defaulted in the payment of two installments of a judgment
debt as a result of which an order for the attachment of his salary was issued.
He applied for a review of the order on the grounds that it was harsh and
unjust. The application was granted by the chief magistrate and the appellant
appealed and submitted that the respondent was not a person aggrieved by
the order.
It was held that the respondent was a person aggrieved. There was no
sufficient reason to grant the review. Court observed that the grounds of
appeal cannot be the same grounds of review. Accordingly, it was finally held
that the chief magistrate erred in law in reviewing his former order for
attachment of the respondent’s salary. The order made on review was set
aside.

162
REVISION OF JUDGMENTS/DECISIONS

1. Hassan Karim And CO. Ltd V Africa Import And Export Central
Corporation Ltd (1960)1 EA 396 (HCT) Before Simmons J
In a district court, the plaintiff successfully obtained an order setting aside a
decree entered by consent between the parties.
The defendant applied for a revisional order to the high court.
The application was dismissed on grounds that the high court had no power
under s.115 of the Indian code of civil procedure to receive an interlocutory
order.

2. Munobwa Muhamed V Uganda Muslim Supreme Council (Civil

Revision No. 001 of 2006) Before Hon Lady Justice Irene Mulyagonja
This was an application for revision of a decision of a Senior Grade II
Magistrate sitting at Kaliro, in which he declared that the price of land in
dispute belongs to the respondents who were the plaintiff in the suit. He
further ordered that the applicant/defendant and his relatives, agents and
employees be evicted from the land within 30 days of the judgment and the
respondent be left in permanent injunction to restrain the applicant from
trespassing on the land and ordered that he pay the costs of the suit.
The main ground of the application was that the trial magistrate lacked the
pecuniary jurisdiction to entertain the matter.

Her lordship found that the applicant had not proved that the trial magistrate
exercised a jurisdiction not vested in him by law. Neither did he prove that he
failed to exercise a jurisdiction so vested in him, not that he acted in the
exercise of his jurisdiction illegally or with material irregularity or injustice.
The applicant was therefore not entitled to the remedies claimed in the
application, such as revision.

163
3. KARIA V WAMBURA (1961) 1 EA 91 (HCT) Before murphy J
A magistrate made an order addressed to the clear of the legislative council
purporting to attach a member’s salary. As it appeared that this was not an
order which could lawfully be made. The matter was set down for
consideration by the high court in revision.
It was held that the magistrate order was bad because the defendant was not
an employee of the legislature and the provisions for attachment of the salary
contained in s.60(3) of the Indian code of civil procedure did not apply.
This was a case in which the high court could properly exercise its powers of
revision under s.115 of the Indian code of civil procedure.
Order accordingly.

4. Muhangi mukono v Rushwa Native Farmers Co-Op Society Ltd

(1959) EA 595. Before Davies CJ
In a summary suit brought by the applicant/plaintiff, the resident magistrate
Bukoba granted leave to the defendant to appear and defend the suit even
when the defendant/ respondent had not applied for such leave within the
statutory 10 days (0.36CPR). the plaintiff/applicant there after applied to the
high court for a revisional order.
It was held that the high court has the right to revise an interlocutory order of
a subordinate court, the right, however, is discretionary.
However, court refused to revise the order reasoning that much as the order
ought not to have been made on the information before the magistrate, such
irregularities had not occasioned such grave injustice to the applicant as for
justify the court interfering.

3. Mwatsahu v Maro (1967) 1 EA 42 (HCK)Before Harris J

164
The plaintiff obtained judgment in default of defense against the defendant for
the amount which included the cost of repairing a car sold to him by the
defendant which as the defendant had no title, he had to return to its rightful
owner. The defendant refused to approve the decree, claiming that this was
not a “liquidated amount” and the registrar had no power to enter judgment in
default on reference to the judge.

It was held that the true nature of the claim was one for pecuniary damage for
breach of warranty of title which was not within 0.48 r.1(2) and therefore the
registrar had no power to enter judgment for it.
The registrars order was revised.
5. Byanyima Winnie v Ngoma Ngime (High Court Civil Revision no.
0009 of 2001 AT Mbarara) Before Hon Justice V.F
The applicant was declared as a winner of the parliamentary elections, as MP
for Mbarara constituency. On application by the respondent who was a second
runner up, the chief magistrate at Mbarara made an order of recounting the
votes.
As the recount went on, the applicant made an application to the high court to
revise the trial magistrate’s order of recount.
His lordship made an order setting aside the trial magistrates order for a
recount on grounds that the trial court lacked jurisdiction to make such an
order when the applicants name had already been gazatted as MP for
Mbarara, to do so would be to assume the powers of high court to question
where the election was valid.

6. SGS Societe General De Surveillance SA v VIP Engineering and

Marketing Ltd (2002) 1 EA 264(CAT) Before Lubuva, Ramadhani and
Lugakingira JJA

165
In a dispute between the parties, the respondent filed a suit against the
applicant.
The applicant in turn filed an application by chamber summons seeking court
to make an order of stay of the proceedings pending reference of the dispute to
arbitration under the PSI (pre-shipment inspection) agreement between the
parties. The high court ruled that in filing the statement of defense
simultaneously with the chamber summons, the applicant had abandoned its
right under the arbitration agreement and subjected its self to the court’s
jurisdiction.
From this decision, the appellant lodged an application for revision.
The appellant court held that in such a case there were no circumstances
justifying the court to exercise its revisional jurisdiction.
The appeal was dismissed.

APPEALS (GENERAL PRINCIPLES AND POWERS OF 1ST, 2ND AND 3RD

APPELLATE COURTS.
1. Eleke Balume and Others V Goodman Agencies Ltd and Others
(HCMA NO. 12/2012) Before Hon. Justice Christopher Madrama
The applicant motor vehicle owners made an application seeking for orders of
stay of execution; for orders that the consent judgment reviewed by the
constitutional court be set aside and for orders that the applicant be joined as
parties to the civil suit. The consent judgment was made between the 1st
respondents and 3rd respondents (AG) on behalf of the applicants.
Court found that by virtue of the hire agreement, the 1st respondents were
agents of the applicants with a legal right to bring proceedings on behalf of the
applicants.
Further it was observed that a consent judgment should ordinarily be
challenged in the suit itself by way of an application for review to set it aside.

166
A consent judgment is not appealable and therefore can only be set aside or
varied in the suit itself. S. 67(2) CPR bars appeal from a consent decree.
The appeal was dismissed.

2. Stanbic Bank Uganda Ltd v Atyaba Agencies Ltd Before J Mulenga

This was an exparte application for an interim order to stay execution of a
high court decree which was upheld in the judgment of the court of appeal.
It was held that although ordinarily where there is a pending appeal or notice
of appeal, an interim order to stay would be granted in the interest of justice,
in the instant case, the applicant failed to satisfy the conditions for such an
order to be granted.
Accordingly the application was dismissed.

3. Baku Raphael Obudra and Another v AG (Const Appeal No. 1/2005)

Judgment of Odoki, CJ
Mr. Baku and another were dissatisfied with the results of a parliamentary
election. They went to the high court which dismissed their election petition,
on further appeal to the court of appeal, the decision of the trial court was
upheld.
According to s. 67 of the parliamentary elections act, 2001 the court of appeal
is the final appellant court for parliamentary election petitions. They went to
the constitutional court to declare the impugned s.67 of PEA, 2001 as being
unconstitutional conferred appellate jurisdiction to the Supreme Court. The
constitutional court declared that the stated provisions were not
unconstitutional. On further appeal to the Supreme Court on that issue, it
was unanimously held that jurisdiction cannot be prescribed by mere
inference, it is a creature of law. Thus appeal is a creature of statute and once
the law does not permit appeal, then one cannot purport to appeal.

167
4. Uganda breweries ltd v Uganda railways corporation
(SCCA NO. 6/2001) (FULL BENCH) Judgment of order –JSC
The respondents train locomotive rammed into the appellants semi-trailer on
Kampala-Portbell road. The appellant sued the respondents at the high court
claiming costs of repair of the damaged trailer owing to negligence of the
respondent.
The respondent likewise counter-claimed alleging negligence of the appellant.
The counter claim was allowed and the appellants claim disallowed.
On appeal, the appellant action was dismissed. Hence, this appeal, the
grounds being that the court of appeal failed to adequately evaluate and
scrutinize the evidence adduced with a view to coming to their own conclusion
as a first appellate court and further that the COA erred in law and fact in
upholding the award of specific damages therefore failing to notice that the
trial judge had acted on an erroneous principle in awarding the excessive sum
of shs. 280,000,000/= to the respondent as damages.
Court found that there is no particular format for reevaluating evidence by the
1st appellate court and in the circumstances the COA clearly reevaluated the
evidence before it.
However, on the issue of awarding specific damages, the court found that the
COA erred inn affirming the trial judge’s decision which was based on a wrong
procedure. This is so because the respondent did not prove special damages.
The court applied to the principle in Kifamunte Henry v Uganda case. His
lordship stated further that the extent and manner in which re-evaluation
may be done depends on the circumstances of each case and the style used by
the first appellate court.

5. Robert Cuossens v AG (SCCA NO. 8 OF 1999) (FULL BENCH) J.

Order

168
The appellant was an international diver who was shot by the police. He
brought a suit against the AG, the H/C ruled in his favor awarding him shs.
50,000,000/= as general damages. On appeal against the award of damages,
COA affirmed the trial decision dismissing his appeal. His further appeal to
the Supreme Court premised on grounds that the learned justice of the COA
erred in re-evaluating the evidence when they affirmed the award of general
damages by the high court.
The court held that as a first appellate court, the COA properly evaluated the
findings of the trial court and came to its own conclusions affirming the trial
decision.
Since the appellant had not proved loss of earnings, the trial court properly
exercised its discretion to determine the general damages awarded.
The appeal was dismissed.
6. Francis Sembuya v All Ports Services (U) Ltd (SCCA NO. 6/1999)
Judgment of Tsekooko JSC
The facts are that the appellant and his friend who were in a partnership won
a tender to supply cement following a programme dubbed “the reconstruction
of northern Uganda”. The appellant did not have the means to provide the
cement, so he contracted the respondents who supplied at an agreed price.
Later it appeared that the appellant failed to fully pay the respondent. The suit
against the appellant at the high court succeeded, the appellants appeal to the
COA was dismissed hence this appeal.

One of the grounds of the appeal being that the COA judges erred in affirming
the trial decision which found that a partnership existed between the
appellant and his friend, whereas not. The question of whether the second
appellate court can interfere with the findings of the trial court on facts which
was affirmed by the court of appeal.

169
The court found that whereas, the second court need not to interfere with the
findings of fact reached by the trial court, it can interfere where the COA did
not fulfill its role in re-evaluating the evidence.
In the circumstances court found that there was no reason to interfere with
the findings of the 2 lower courts. The appeal was dismissed.

170
 APPEALS IN MAGISTRATES COURT, INCLUDING INTERLOCUTORY
APPLICATIONS
1. Tight Security Limited v Chartis Uganda Insurance Co.
(HCCS NO. 14/2014) Before Hon. Mr. Justice Christopher Madrama
Izama
The appellant appealed from a decision of a chief magistrate. The respondent
raised an objection that the appeal is competent; that the appeal was lodged
after the limitation period of 30 days under section 79(1)(a) CPA, after the date
of decree or order of the court.
The objection was upheld and the appeal was held to be incomplete. His
lordship concluded that an application for the record of proceedings upon
which the decree or order is founded cannot be made after the period of
limitation of 30days has expired. An application for the record of proceedings
has to be made within 30 days or at least before expiry of the limitation
period. That time of limitation begins to run from date of judgment.
The record cannot be availed in every case but in cases where there is an
intention to appeal against the order or decree of the chief magistrate or
Magistrate Grade I, the only way the lower court can be aware of an intention
to appeal against the decree or order is through an application for the record
of proceedings made before the expiry of the limitation period.
In the instant, the decree was availed to the appellant who ought to have
lodged an appeal within 30 days from 5 April 2013, there after the appellant
was at liberty to apply for copies of necessary documents at their own cost.
The memorandum of appeal was lodged on 20 June 2013 about 45 days out
of time reckoned from the date of the decree to the intending appellant.
Accordingly, the appeal was struck out with costs.

171
2. Nabudde v Kikumi (HCT-04-CV-CA-0072-2009) Before Hon. Justice
Stephen Musota
This was an appeal from the ruling of the chief magistrate Mbale.
It was found by his Lordship Steven Musota that the appellant had no locus
standi to file this appeal since she was not a party to the lower court suit.
The appellant had dropped her objector proceedings in the lower court against
the respondent, there was no way she could resurrect the matter and appeal
yet judgment at the lower court was entered without her as a party.
Therefore an appeal can only be instituted by a party to the suit.

3. Tumuhairwe Lucy V Electoral Commission and Another (HCT-05-

CV-EPA-02-2011) Before Hon. Mr. Justice Bashaija k. Andrew
This was an election petition appeal from the orders and decree of the chief
magistrate. The respondents raised objections firstly, that the decree had not
been properly extracted and filed with memorandum of appeal in accordance
with 0.43 r.1 (2) CPR, unlike an appeal from the high court to the court of
appeal, where an extracted decree is not a requirement.
Court found in that objection that as long as there is a decree being appealed
against, even it was not certified it did not render the appeal incompetent.
The duty to extract a decree in the magistrates court lies with the court, in
accordance with 0.21 r.7 (3) CPR.
A decree is simply a summary of the court’s decision as to the rights of the
parties in controversy.
Lack of properly extracted decree is a mere technicality.
The second objection related to the incomplete record of appeal, that the
petition, response to petition and affidavits were not filed with the
memorandum of appeal or served.
Court still found on that objection that filing all pleadings with the
memorandum of appeal is only required in appeals to the court of appeal.

172
All the objections were overruled.

4. Sarah Kintu V Jjombue Ssebadduka Fred (HCCA N0. 025 OF 2011)

Judgment of Hon. Mr. Justice Joseph Murangira
The appellant brought this appeal by way of notice of appeal and
memorandum of appeal under 0.43 CPR against the judgment of the trial
magistrate.
The respondent opposed the appeal, particularly that this appeal was filed out
of time contrary to the law governing lodging appeals.
It was found that the appellant had not extracted the decree or order before
preferring an appeal. The laws concerning lodging of appeals from the lower
courts to the higher court are order 43 rule 1 of the CPR, which provides that
an appeal shall be commenced by a memorandum of appeal and section
79(1)(a) of the CPA, cap 71 which provides that an appeal shall be entered
within 30 days of the date of the decree or order of the court.
In the instant appeal, the appellant commenced the appeal with a notice of
appeal and filed a memorandum of appeal on 5th august 2011 which is far
beyond the described time by law within which to file an appeal. This appeal
was filed out of time.
However, court exercised its discretion to look at other grounds of appeal an
in conclusion allowed the appeal.

5. Eleke Balume and Others V Goodman Agencies Ltd and Others

(HCMA NO. 12/2012) Before Hon. Justice Christopher Madrama
(See supra in no.1 on sub-topic: appeals general principle and powers of 1st,
2nd and 3rd appellate courts)
6. Buso foundation ltd v bob mate Philips (HCT-00-CV-CA-0040-2009)
Before Hon Justice Akiiki-Kiiza (Ruling)

173
This was an application to strike out the notice and memorandum of appeal
pursuant to 0.43 rr 1 & 27, CPR, 0.52 rr1 & 3 CPR, SS 79(1)(a) and 98 OF
CPA, one of the grounds being that the appeal was filed out of time and
contrary to the law on commencement of appeals to the high court.
Court found that the appeal was completed holding that appeals to the high
court are governed by the clear provisions of 0.43 CPR and 5.79 of CPA. In
both provisions there is no mention requiring the appellant to copy and serve
the letter to the lower courts requesting for the decree/order and the
proceedings to enable it prepare his appeal. He might do it as courtesy but not
as a legal obligation.
In the result it was found that the respondents appeal was lodged in time by
the memorandum of appeal filed on the 18/08/2009. The time between the
15/5/2009 and 18/08/2009 is to be excluded under s.79 (2) CPA.
The application failed.

APPEALS FROM THE HIGH COURT TO COURT OF APPEAL INCLUDING

INTERLOCUTORY APPLICATIONS
1. Gaba Beach Hotel Ltd V Cairo International Bank
This was an appeal against the decision of the taxing master in respect of the
courts bailiffs’ bill of costs filed in this court in which he ordered the judgment
debtor/appellant to pay an unspecified sum of money to the court bailiff.
His Lordship Justice Egonda Ntende revised the decision of the taxing master
but refused to set aside the order as to bill of costs, instead the court bailiff’s
bill of costs was remitted back to the taxing master for taxation, in accordance
with the applicable law.

2. Mwiru Paul v hon. Igeme Nathan and others (EPA/CA NO. 6/2011)
Judgment Of Byamugisha, J

174
This was an appeal against the dismissal of an election petition before the trial
judge the appellant sought to annul the election of the first respondent as MP
for Jinja East constituency.
The appeal was allowed where court found that the first respondent personally
committed the offence of bribery and on this ground alone, the election of the
1st respondent as MP for Jinja East constituency was nullified.

3. Dr. Ahmed Muhammed Kisuule V Greenland Bank (In Liquidation)

(Civil application no. 10/2010)(SC) RULING OF THE COURT
The supreme court of Uganda was faced with a situation of deciding whether
the appellant had obtained leave to appeal the decree of the high court.
It is a requirement under 0.44 r.2 of CPR that leave of court has to be
obtained either from the high court of from the court of appeal to appeal
against the order of the high court.
In the instant, the trial court had dismissed the appellants request for review
of the high court judgment. The appellant had not obtained the mandatory
leave required by the rules to appeal to COA he had filed his appeal directly to
the court of appeal.
Court thus on the issue of leave, concluded that the applicant needed leave
either from the high court which dismissed his application for review or from
the court of appeal to which appeal against that dismissal would lie if leave
was granted.
Further still, court noted that under 0.44 r.4 CPR, application for leave to
appeal shall be by motion on notice. Thus there is no room for oral application
for leave allowed as the appellants counsel contended.
4. Dr. Nabwiso Frank V Electoral Commission and Another. (Election
Petition No. 04 Of 2011) COA Justice Eldad Mwangusya.
This was a contest of the election of the 2nd respondent as MP for Kagoma
County.

175
His lordship found that the 2nd respondent was not validly elected and thus
ordered a re-election (fresh election).
5. Wanume David Kitamirike v URA (CIVIL APPL. NO 138 OF 2010)
This application was brought under rules 43, 82 and 83 of the judicature
(court of appeal rules) directions seeking an order by the applicant that civil
appeal no. 43 of 2010 between the respondent as the appellant and the
applicant as the respondent be struck out by reason that the respondent filed
in this court the record and memorandum of appeal out of the prescribed
time, thus failing to take an essential step in the appeal proceedings.
Court however, found that since the respondent filed the memorandum of
appeal and the record of proceedings in the court of appeal and served the
same on the applicant on 23/06/2010 that was still in time.
The court also dealt with the issue of whether the registrar’s certificate was
validly issued and served on the respondent.
Court disagreed with the applicant’s assertion that he had notified the
respondent and also availed them the certified record of proceedings of the
high court which was applied for by the appellant. Court was of the view that
it is the duty of the registrar to inform the applicant of the readiness of the
record of proceedings applied.

In the result, court found that the certificate issued by the registrar certifying
the readiness of the proceedings was valid merely because it was headed “in
the court of appeal of Uganda “ instead of “ in the high court of Uganda” was a
minor error which could not invalidate it.
The appeal was found to be filed in time.

6. National Housing And Construction Co. Ltd V Salome Kyomukama

(Civil Application no. 133 of 2009)(COA)

176
This was an application to strike out civil application N0. 82 of 2007 instituted
by the respondent. The respondent had also instituted an appeal both in the
high court and in the court of appeal.
It was contended by the respondent that he had duly served the applicant
with the notice of appeal and letter applying for record of proceedings.
However, court found that the letter applying for the record was never served
on the applicant and accordingly, the notice of appeal was null and void and
accordingly, it was struck out under rule 83(3) of COA rules. Since the letter
was not signed, there was no valid service and proof.

7. Bamuda tobacco and another v BAT (U) Ltd (CAC ref no. 22/10)
Before Justice Mpagi-Bahigeine, JA (Single Justice)
This was a reference to a single judge from orders of a registrar of court of
appeal who went ahead to grant an interim order of stay of execution. Counsel
for the applicant raised concern that the registrar did not have jurisdiction to
grant the order.
His lordship dismissed the reference holding that the registrar had jurisdiction
to grant the order of interim stay by virtue of practice direction no. 1 of 2004,
the court of appeal (judicial powers of registrars)
The court observed further that such order for interim stay does not overturn
the judgment of high court.

8. Mugabo Peter Bagonza And Others V James Kimal And Others (Civil
Reference No. 63 of 2013) Before Justice Solomy Barungi Bossa
This was a reference by the appellant against the order of the registrar of the
court of appeal dismissing civil application no 357 of 2012 between the
parties, in which he dismissed the application of stay of execution of consent
judgment.

177
It was contended by counsel for the respondent that an application of this
nature is supposed to be before a full bench of three justices of appeal.
Court found that whereas practice direction no. 1 of 2004 grants the registrar
powers similar to those of a single justice of appeal under s.12 of the
judicature act to handle specified interim applications and that while a
decision of a single justice of appeal is appealable to a bench of 3 justices
under s.12(2) of the Judicature Act, there is no specific provision that
establishes reference/ right of appeal from decision of a registrar to a single
justice of appeal.
His lordship advised that the lacuna has to be rectified by enactment of a
specific rule by the rules committee since appeal/reference is not a matter of
inference but a creature of law.
In the result, his lordship declined to have jurisdiction to hear the reference
made by the applicant from the decision of the registrar denying stay of
execution.
The application/reference was dismissed with cost.

9. Dr. Sheik Ahmed Mohammed Kisuule M/S Greenland Bank Ltd (In
Liquidation) (HCMA NO. 2/2012) Before Justice Hellen Obura
This was an application seeking extension of time within which to lodge an
application for leave to appeal against the decision of Stella Arach-Amoko, J
(as she then was ) in misc. Appl no. 616 of 2007 and also that the
defendant/applicant be granted leave to appeal the said decision.
On the first leg of the application for extension of time to lodge an application
for leave to appeal court granted the prayer holding that under 0.51 r 6 CPR,
the court has power to extend time and so it was ordered. This was so because
the applicant had instructed his former lawyers to conduct the case and they
turned out to be negligent.

178
This application was brought after 3 years of expiration of the time appointed.
This mistake of counsel should not be visited on the innocent
instant/applicant.
Further still, the second leg on leave to appeal, court discussed the conditions
for leave to appeal to be granted, that the applicants must show that prima
there are grounds of appeal which merit serious judicial consideration. In the
circumstances, court was satisfied that the applicant fulfilled those conditions
and granted leave to appeal this is because, there was no automatic right of
appeal given by the law in that case, so the only option was that leave to
appeal be sought.
The application was allowed.

10. Butera Edward V Mutalemwa Godfrey (Civil Reference No. 070 of

2013) Coram: Hon Justice Remmy Kasule, JA (single justice)
This was reference before a single justice of the court of appeal against the
decision of the Registrar dismissing an application for an interim order to stay
the high court decree made.
Court found in the instant that the reference was properly before the court in
as much as it is in the nature of an appeal against the decision of the
assistant registrar.
Accordingly, on other grounds as well, court allowed the reference unlike in
the case of Mugabo Peter V James Kimalo where J. Bbosa denied the reference
a holding that no automatic right of appeal/reference lay from the rules.

11. Jaspal S. Sandhu V Noble Builders and Another (SCCA NO.

13/20020 Judgment of Kanyeihamba, JSC
This was an appeal against the COA which overruled the trial courts findings.
The appellant who was a director in the 1st respondent co later transferred all
his shares to his wife who became the new director. He after sometime

179
brought a suit for winding up the company. The trial court ruled in his favor,
COA reversed that decision. Hence, this appeal to the Supreme Court.

The appeal was dismissed; it was found that the appellant had validly
transferred his shares in the co. to his wife so the court of appeal was right to
find that he had no locus standi to institute the appeal.
His lordship also wondered why the appellant’s wife (the new director of the
company) had not been made a party to the suit to exercise her rights since
she owned the 49% shares in the company.

12. DFCU Bank Ltd V Dr. Ann Persis Nakate Lusejje (CACA no.
29/2003) RULING OF THE COURT
The applicant applied under rule 1(3) , 42 and 43 of the court of appeal of
rules, for stay execution of the judgment of Okumu Wengi J sitting in the high
court, Kampala in a HCCS NO 242 of 2002 pending the determination of an
appeal to this (COA)
The respondent had sued the applicant at high court and court held in favor
of the respondent. The respondent had borrowed some money and pledged the
suit property as security (he had sued as mortgagor). Therefore the high court
ordered the applicant to stop selling the suit properly to recover the loan and
also release the property to the respondent.
The applicant’s application before the high court for an order to stay execution
of the orders and decree of the high court was dismissed. The applicant
appealed to the COA but before that he instituted another application in the
COA for stay of execution of orders of the trail court pending determination of
the appeal in this (COA).
The court observed that both the COA and the lower court (high court) have
concurrent jurisdiction to handle applications for stay of execution of decree.
Thus, there is no need of appealing against the lower court’s refusal of the

180
application for order for stay of execution instead a fresh application has to be
instituted in the COA.
The court further noted that when it comes to application for order to stay,
execution in the COA, the civil procedure rules do not apply, instead the law
applicable is the court of appeal rules. That is rule 5(2)(b) of the rules of the
court. That rule empowers the court to stay execution pending appeal in civil
proceedings on such terms as the court thinks fit.
Court found in the instant that the applicant failed to satisfy the conditions of
order 39 r. 4 (3) CPR that is there was no proof that substantial loss may
result if the application is denied, the application was made with
unreasonable delay and she did not pay security for costs.
In the result, the application seeking an order for stay of execution of the
decree was dismissed, the bank was ordered to release title of the statement to
the respondent.
13. Board of Governors of Gulu SS V Phinson E. Odong (HCCA NO. MG-
2 OF 1990)
This was an appeal from a magistrate’s court but in the process, the
respondent raised objections as to the competence of the appeal.

In the result, the objections were upheld and the appeal dismissed. The
following were the considerations on the objections.
On the first ground that the decree or order of the lower court against which
this appeal has been lodged that was not extracted, court found that when
instituting an appeal, the decree or order of the lower court must be extracted
and then lodged together with the memorandum of appeal merely lodging a
memorandum of appeal alone does not institute an appeal (as the appellant
did) this rendered ythe appeal incompetent.

181
Further still, to institute an appeal to high court, you lodge a memorandum of
appeal, not a notice of appeal. Even lodging a notice of appeal and filing later
the memorandum of appeal does not result into a competent appeal.
An appeal lies from the lower courts order or decree but not judgment or
ruling.
Court also found that the purported order extracted was not one which is
automatically appealable from, and since the appellant did not appeal for
leave was rendered incompetent.
Court also found that the respondent had not paid appropriate fees on the
notice of cross-appeal, nevertheless, the respondent was allowed under s. 100
CPA to pay the appropriate filing fee on the notice.
14. Monday Eliab v AG (Civil Appeal No. 16/2010) Judgnment of
Tumwesigye, JSC
The appellant hired a vehicle to the state house. Later an accident occurred in
which the car was damaged .
In a suit for breach of contract at the high court, the appellant was successful.
On appeal to the court of appeal by AG the trial decision was set aside. On
further appeal by the appellant (Monday Eliab), it was contended that that the
respondent in its appeal to the COA did not specify frustration as one of the
grounds of appeal and it is on this ground that the appeal was determined,
hence that the learned judge of the COA erred.
On that issue, court found in favor of the appellant, holding that the learned
justices of appeal erred to base their decision to allow the respondent appeal
on the grounds that the contract of hire was frustrated and terminated when
the respondent did not plead frustration as a defense in his written statement
of defense or even make frustration of the contract of hire a ground of appeal.
The court went further to find that there was no evidence of frustration to lead
to the courts finding that the contract was frustrated.
In the result the appeal was allowed.

182
15. Mandela Auto Spares V Marketing Information Systems Ltd, civil
appeal reference no. 74 of 2008

The court recognized the registrars mandate to make such orders as interim
order of injunction stay of execution of high court orders.

16. URA v Uganda Consolidated Properties Ltd (CACA NO. 31 OF

2000)(CA) JUDGMENT OF TWINOMUJINI, JA.
This is an appeal against the decision of the high court of Uganda (Okumu
Wengi,J ) dated march 2 2000 in which the tax appeals tribunal was ordered
to hear the respondents application which it had requested to entertain on
grounds that it was time barred.

The learned judge held that the date of the taxation decision was June, 17
1999 and that the respondent was within the time limit of 30 days when he
filed the application before the tax appeals tribunal. He ordered the tax
appeals tribunal to hear the application on its merits, hence this appeal by
URA.
The COA found for the appellant and allowed the appeal. It found that the tax
appeals tribunal (TAT) had properly considered the matter under the Tax
Appeal Act, 1997.
The application was remitted for review to be heard by the TAT.
17. Hon Rose Akol Okullo And Among Anita (EPA NO. 35 OF 2007)
RULING ON COSTS
The respondents counsel had been instructed by the respondent to handle the
respondents appeal and application to strike out the appeal. The appeal by
the respondent had been struck out by the COA.

183
Court found that they had been negligent in conducting the case and ordered
costs against the respondents counsel (Mr. Komakech Godfrey) and his law
firm to pay to the successful applicant.

18. Francis Sembuya V All Ports Services

(See facts in case no. 6 on topic appeal, general principles and powers of 1 st,
2nd and 3rd appellate courts)
Here the Supreme Court was faced with a situation of admitting fresh
evidence even though its duty as a second appellate ordinarily does not allow
it.
The court found that the available evidence showed the existence of a
partnership between the appellant and a one Francis Sembuya. They were
thus, jointly liable to the respondent.

19. Alley route v UDB (HCT-CC-MA-NO. 0634/2008)

(See Case No. 4 on Sub-Topic (Discretion of Court: interlocutory
applications)
The application was for a temporary injunction, the application was allowed,
the applicant having fulfilled all he conditions.
20. Sango Bay Estates Ltd And Others V Dresdenor Bank
AG (1971) 1 EA 17 (CAK) Before Duffus P Spry V-P and Mustafa JA
In action on bills of exchange the applicants applied for a third party notice
against the second respondent. The summons for directions was dismissed by
the judge on the main ground that the claim was for damages and not for
contribution of indemnity. The judges dismissed an application for leave to
appeal made informally, and there after dismissed a formal application.
The applicants applied to the court of appeal for leave to appeal, contending
that the informal application should have been granted, that the judge should
not dismiss a summons for directions.

184
The court raised the question whether there was jurisdiction to grant leave to
appeal.
It was held that where there is an arguable case, leave to appeal should be
given and that an informal application for leave to appeal may be made.
Therefore the trial judge was wrong to treat the informal application as
incompetent.
Spry V-P observed further that leave to appeal from an order in civil
proceedings will normally be granted where prima facie it appears that there
are grounds of appeal which merit serious judicial consideration.
Where the order from which it is sought to appeal was made on the exercise of
a judicial discretion, a rather stronger case have to be made out since in the
instant, there were arguments which merited consideration leave to appeal
was granted.

21. Commissioner general URA v Meera Investments Ltd (HC

miscellaneous application no. 359 of 2006)
The applicant was seeking for leave to appeal against a decision made against
it in favor of the respondent.
The court observed that in an application for leave to appeal, it is not open to
court to determine whether the intended appeal would succeed or not. If the
applicant has raised arguable grounds of appeal and there are serious matters
which merit consideration on appeal and is not guilty of dilatory conduct then
court should exercise its discretion and grant the applicant leave to appeal.

22. Degeya Trading Stores (U) Ltd v URA (CACA NO. 16/96)
Their lordships of the court of appeal stated that an applicant seeking leave to
appeal must show either that his intended appeal has reasonable chance of
success or that he has arguable grounds of appeal and has not been guilty of
dilatory conducts.

185
186
APPEALS FROM COURT OF APPEAL TO SUPREME COURT INCLUDING
INTERLOCUTORY APPLICATIONS.
1. Kabale Housing Estate Tenants Association Ltd V Kabala Municipal
Local Government Council. (Civil Application No. 15 of 2013) (SC0)
Ruling Of C.N.B Kitumba, J-S-C
The application was brought by notice of motion under rules 2(2), 6(2)(6) and
43 of the judicature (supreme court rules) directions, for an interim order to
be granted staying execution of the orders of court of appeal in Civil Reference
no. 94 of 2013 and also costs of the application.
The court was faced with the issue of whether Mr. Rwaganika (one of the 2
lawyers for the applicant) was duly instructed to represent the applicant in
order to determine competence of the application.
Court found that by resolution of the company (applicant), instructions had
been withdrawn from counsel Rwaganika and replaced with Mr. Mwebesa as
new counsel for the applicant.
Mr. Rwaganika was only instructed by a few members of the company to
represent them and not the company itself.
The preliminary objection which had been raised by the respondent that
counsel Rwaganikla did not have instructions and the only dully instructed
counsel is Mr. Mwebesa was upheld.
The application having been filed by counsel without instructions was
therefore incompetent in law.

2. Godfrey Magezi and Another V Sudhir Rupaleria (SCCA no. 10 of

2002) Ruling of Karakora JSC.

187
This was an application before the Supreme Court seeking orders that leave
be granted to file an appeal out of time and to also validate an appeal which
had been filed to the Supreme Court out of time.
Court granted the application after finding that it was the error, mistake or
inadvertence of former counsel for the applicants in prosecuting the appeal,
this could not be visited on the applicant.
Thus leave to file the appeal was granted and also application of validation of
appeal no. 16 of 2001 which had been instituted outside time was allowed.
3. Godfrey Magezi and Another V Sudhir Ruparelia (SCMA NO. 06 OF
2003) RULING OF THE COURT
This was an application by way of reference to this court (SC) from the
decision of a single judge (Kanyeihamba) who declined to grant an
application for an extension of time (the appeal had been filed out of time.)
It was held that a single justice by virtue of Supreme Court rules 4 and 49 has
jurisdiction to hear an application for extension of time, he has discretion to
grant or refuse to grant extension of time to a party even when there is a
pending application to strike out an appeal. The single judge erred in
dismissing the application on grounds that he did not have jurisdiction to
entertain it.
The reference was allowed.

188
4. Kasaala Growers Co-Op Society V Jonathan Kalener and Another
(SCCA APPL. NO. 24/2010) RULING OF TSEKOOKO, JSC
The application was brought by notice of motion seeking for leave to file
memorandum and record of appeal out of time. The grounds were that it was
due to professional negligence of the applicant’s former lawyers that the
applicant failed to institute the appeal in time.
In the circumstances of the case, his lordship applied, art 126(2)€ of the
constitution, thus exercised his discretion and granted the application for
leave to file the memorandum and record of appeal out of time.

5. Margaret Kato V Nulu Nalwoga (SCC APPL. NO. 11/2014)

RULING OF THE COURT
The application sought for an order of stay of execution to issue against the
respondent who was the successful appellant at the court of appeal pending
determination of the applicants appeal to this court (SC)
The respondent contended that for the order to be made, the applicant should
be required to deposit security for due performance of the decree because the
applicants are not resident of Uganda.
Court dismissed this argument because the respondents had also sued the
applicants when they were living out of the country. Besides to agree with the
counsel for the respondent would have the undesirable effect of blocking the
applicants as unsuccessful litigant from pursuing their right of appeal before
the final appellant court merely because of their current residence.
Court also found that the applicant being an individual litigant and not a
corporate entity would be prejudiced if ordered to pay the shs 50,000,000 as
security for due performance of decree as proposed by the respondents
counsel.

189
Upon objections by the respondent as to the competence of the application,
court found that there was no supporting affidavit to the application as
required by rule 43 of the supreme court rules since Mumba Kalis affidavit
was found not to comply with the law (illiterate protection act) because the
deponent is not the one who drew the affidavit, its contents could not be
relied.

Upon upholding that objection, the application was struck out with costs to
the respondents.

6. Kasaala growers co-operative Hwan Sung Industries Limited v

Tajdin Hussein and Other (SCC APPL.NO.19/2008)CORAM: G.M OKELLO,
JSC

This was an application under rules 2(2), 42(1) and 47(2) of the Supreme
Court rules seeking an interim order for stay of execution and also for an
order for costs of the application.

Court found that if the interim order is not granted, there was a real threat of
executing the decree before the disposal of the substantive application. If that
is done, the substantive application would be rendered nugatory.

In the result, court allowed the application.

7. NATIONAL HOUSING AND CONSTRUCTION CORPORATION v

Kampala district land board and another (SCC APPLICATION NO. 06 OF
2002)

190
This was an application seeking an order of stay of execution of an order by
the lower court in which the appellant’s property was threatened to be sold.

Court granted the application, court ordered the applicant to institute the
intended appeal in this court within 45 days from the date of this ruling. The
applicant was also ready to deposit adequate security, thus it was just that
the application be granted.

8. J.B Chemicals and Pharmaceuticals Ltd V Glaxo (SC) Group Ltd Ent
(SCCA NO. 18/2004) JUDGEMENT of TSEKOOKO, JSC

The current appellant had been successful before the deputy registrar of
trademarks who dismissed the respondent’s objection on the registration of
trademark by the appellant.

The respondent appealed to the high court against that decision; however the
high court equally dismissed the respondents appeal.

The respondent appealed to the COA which overturned the lower court’s
decision. Hence, this appeal from the COA s decision to the Supreme Court.

His lordship justice Tsekooko wondered this appeal to the Supreme Court
was a second or third appeal. He discussed the circumstances to enable right
of appeal, that an action from the registrar to high court does not arise by way
of appeal but reference. Accordingly, in the circumstances, the ruling of the
registrar does not amount to the decree or order which creates an automatic
right of appeal.

Thus, the high court in the instant became the court of the first instance as
first such when the trail judge determined the destitute between the parties,
he made orders or decrees which were appealable to the COA as now the first
appellant court and subsequently appeal to this (supreme court) as second

191
appellant court. Had this appeal to the Supreme Court been a 3 rd appeal,
leave to appeals would be required either from the court of appeal or Supreme
Court, in which case the appellant had not applied for one.

The judge therefore concluded that the appeal to the Supreme Court was a
second appeal.

Justice katureebe, JSC added that in the instance, the assistant registrar of
trademarks did not sit as an ordinary court of first instance but as an
administrative tribunal being part of the executive.

In the result, the court affirmed the decision of the court of appeal and thus
dismissed the appeal.

10. Mulowooza And Brothers Ltd v N-Shah & Co. Ltd (SCC APPLICATION
NO. 20/2010)

In this case, the justice decided that the omission, mistake or inadvertence of
counsel ought not to be visited on the litigant, leading to the striking out of
this appeal thereby denying him justice.

11. Eric Libebaga V Fr. Narsensio Begumisa and Others (SCCA

APPLICATION NO. 18/2002) CORAM: KATO, JSC (Single Justice)

The application was for the extension of time to file submissions. It was
premised on basically one ground that it was the fault of the process server of
the counsel for the applicants who did not file the submission on time and
that the applicant should not be punished for the mistake or negligence of
advocates clerk.

Court started by ruling that s.99 CPA under which the applicant brought the
application does not apply to this kind of application.

192
The applicable law was rule 4 of the Supreme Court rules, 1996(then), which
the applicant also relied on.

Court found that there was no valid affidavit to support the application as the
same was false and also that there was no evidence to establish that the
applicant had sufficient reasons, within the meaning of rule 4 of the rules of
Supreme Court, which prevented him from filing the submissions on time. The
application was dismissed.

12. AG and Uganda land board commission v James mark and another
(SCCA NO. 8 OF 2004) JUDGMENT OF MULENGA, JSC.

This second appeal arose from an application the appellants filed in the high
court seeking review of the consent judgments entered by the deputy registrar
in a suit instituted by the respondents against the appellants for recovery of
land. The application was heard and allowed by a judge of the high court.
However, an appeal by the respondents, the court of appeal reversed the
decision and dismissed the application, principally on the ground that the
judge had no power to entertain the application for review.

The respondent raised certain objections regarding competence of the appeal.

He stated that the appellant could not validly bring this second appeal since
in the first appeal at the COA, the appellant did not enter appearance during
the hearing. That in the circumstances, the appellant ought to have applied
for a re-hearing before the same court (COA) and not an appeal to the
supreme court.

However, court overruled this objection, holding that the existence of such
rules , that is sub-rules (4) and (5) of rule 100 (then) of the judicature (court of
appeal rules) directions cannot oust the appellants rights of appeal where they
are dissatisfied with the decision. The right of appeal to the supreme court is

193
vested in the appellants under 5.6(1) of the judicature act such provisions
cannot be construed as imposing a condition precedent for such a losing
respondent to apply for a hearing before exercising the right of appeal to this
court (SC).

On the second objection, that the appeal is an abuse of process of court, it

was held that it had not been established that either the failure to apply for a
re-hearing in the court of appeal or instituting of this appeal was for some
unlawful object or to pervert the purposes for which the appeal processes were
established. That object was dismissed as well.

In the result, upon determining the merits of the appeal, court dismissed the
appeal.

13. Beatrice Kobusingye V Fiona Nyakana and Another (SCCA no. 5 of

2004) Judgment of Tsekooko, JSC.

The appeal arose from an interlocutory ruling by the court of appeal rejecting
an objection to competence of two of the grounds of appeal in that court.

On the competence of the appeal, his lordship ruled that there is no right of
appeal to the supreme court originating from interlocutory orders of the court
of appeal which orders are incidental to the appeal but not resulting from the
final determination of appeal itself.

In the instant, the court of appeal had not determined the appeal yet. Thus
the COA erred in giving the certificate for the appellant to lodge his appeal.

The appeal was therefore incompetent and struck out.

14. AG V APKM Lutaaya (SCC APP NO. 12 OF 2007) BEFORE SINGLE

JUSTICE (KATUREEBE JSC)

194
In an application by the applicant for the extension of time within which to
institute and serve record of appeal his lordship granted leave to the
applicants to institute and serve the record of appeal out of time.

He took into account several considerations and exercised his discretion to

allow the application in the interests of justice.

Court found that the failure to file and serve the record of appeals in time was
due to lapses and mistakes in the attorney generals chambers. Nevertheless,
the application was allowed.

15. Hon. William Oketcho V George Owor (SC CONSTIUTIONAL

APPLICATION NO. 02/2011)

The application sought for interim orders of stay of execution of the

constitutional court ruling nullifying the nomination of several members of
parliament who had joined parliament as independents and vice versa.

The application was granted pending the hearing and determination of a

substantive application for stay and application.

16. Molly Kyalikunda and Others V Engineer Ephraim and Another (SCC
APPL NO. 27 OF 2010) RULING BY DR. KISAAKYE JSC.

In the application the applicant sought for leave extending time within which
to institute an appeal against the decision of the court of appeal.

Her lordship found that the applicant had adduced sufficient evidence for not
filing the appeal, such as the negligence, mistake, error or omission of their
former advocates. Thus, by rule 5 of the Supreme Court rules, she exercised

195
her discretion to grant the extension of time within which to institute the
appeal.

The application was granted.

17. Florah Ramarungu V DFCU Leasing Co. Ltd (SCCA APPLICATION NO.
11/2009) RULING OF TSEKOOKO/JSC

The applicant brought the application seeking for an order of stay of the order
of the court of appeal and staying the ruling in the high court Misc. Appli.
No.115 of 2007 until the hearing and determination of the substantive
application of stay of execution pending appeal in this court.

The learned judge found that the applicant failed to prove that she will suffer
irreparable loss if the status quo is not maintained. There were no compelling
reasons and circumstance in the instant to justify the issuing of an interim
order of stay of execution even if it is possible to execute.

He declined to grant the order and dismissed the application with costs.

18. Akright Project Ltd V Executive Property Holdings Ltd and 12 Others
(SCC APPL NO.3/2011) RULING OF DR. E KISAAKYE, JSC

This was an application before the Supreme Court seeking orders of interim
stay of execution by the respondents.

Court refused to grant the order since the applicant failed to fulfill the
conditions for it to be granted. There was no need of granting the applicant
order of interim stay if she could safeguard her interest by lodging caveats on
the disputed plots instead.

196
The court declined to exercise discretion to allow the application and
accordingly dismissed it with costs.

19. G. Afaro V Uganda Breweries Ltd (SCC APPL NO. 12 OF 2008) RULING
OF G.M OKELLO-JSC

This was an exparte application for an interim order for stay of execution of
an order of costs and decree made by the COA against the applicant in civil
appeal no. 4 of 2005, pending the disposal of an inter parties application for
stay of execution filed and pending in this court under civil application no. 11
of 2008.

Under rule 2(2) of the Supreme Court rules, the court had concurrent
jurisdiction like lower courts to grant the order prayed for. Since the
respondent threatened to execute the lower courts order, the interim order
was made to stay the execution pending to disposal of the substantive
application.

19 Sitenda Sebalu V Sam K Njuba And Electoral Commission (EPA NO. 26

OF 2007)

This was an appeal against the trial judge’s order refusing extension of time
and within which to serve notice of presentation of electoral petition.

The appeal was allowed. The court faulted the lower courts (COA AND High
court) for stating that they do not have jurisdiction to extend time fixed at 7
days for serving notice of presentation of election petition act, laws of Uganda.

Court applied the purposive approach in interpreting s.62 of the PEA and held
that it would not be correct to say that legislature intended non-compliance

197
with the provision however slight or without blame to render the petition a
nullity. The proper interpretation, the primary target and purpose is to discern
the intention of the legislature in enacting the provision.

In the result, the court went ahead to grant the appellant seven days within
which to serve notice of representation of election petition.

The court commented on the appellants record of Appeal which was in

disregard of the rules of the COA, (RULE 83) since it contained unnecessary
and irrelevant documents such as witness summons, hearing notices,
affidavits of service, a production warrants. That the purpose of record of
appeal to guide counsel to include in the record only material that is
necessary for the proper hearing and determination of the appeal.

198
 OTHER RELEVANT CASES ON APPEALS

1. GM Combined v AK detergents (HCCS 384/1994)

THE plaintiff sued the defendant for the recovery of certain immovable
property situated in Kampala, on the grounds that the defendant had
acquired the suit property by fraud. The plaint also prayed for an injunction to
restrain the respondent from allegedly trespassing on and from passing off as
the owner of the suit property.
Upon application by the defendant to the high court, Tsekooko J (as he then
was) granted an order requiring the plaintiff of furnish security for costs in the
sum of 50million shs. He ordered the proceedings in the suit by the plaintiff to
be stayed until further notice S.F.C ordered was paid.
The plaintiff appealed to the supreme court.
Thus in GM combined (U) Ltd v A.K.Detergent
(SCCA NO. 34 OF 1995)
WHERE the appellant appealed against the order of the trial judge for security
for costs, court exercised its jurisdiction to reduce the order for the s.f.c from
50 million to 30 million.
Court also noted that the word appeal denotes the procedure started by filing
a notice of appeal. While a notice of appeal is an intention to appeal, it cannot
amount to an appeal until filing of a memo of appeal, record of appeal,
payment of fees and security for costs.

2. Dr. Rubinga V Yakobo Kato And Another (SCCA NO. 35/92)

JUDGMENT OF PLATT, JSC
The appeal raised points of procedure, whether time can be extended for leave
to appeal from the chief magistrates court to the high court and whether once
leave has been granted, it remains in place even though the ensuing appeal is
struck out.

199
After dealing with the issues before it, court found no sufficient reasons to
interfere with the findings of the trail judge or the following premise: that no
decree had been against from the chief magistrate court to the high court, no
leave was sought, thus there was no pending institution of appeal to warrant
the granting extension of time within which to seek leave to appeal so there
was no appeal.
Court also found that it is a possible to extend time within which to seek leave
to appeal is made, but this power shall only be exercised where the process of
the appeal has commenced which was not the case of the instant.
On the question of whether once leave is granted it remains in place, his
lordship kept it open. In the instant, as leave had not yet been granted , even
by the chief magistrate within time, the judge’s refusal to grant an extension
of time was not unreasonable.
The appeal was dismissed.
3. Capital finance corporation Ltd v URA (CACA N0. 43/2000)
THE appellant who was a licensed credit institution appealed from the
decision of the high court which set aside the ruling of the tax appeals
tribunal and ordered her to pay shs 42,000,000 taxes with interest to the
respondent tax collecting body. The respondent also filed a cross- appeal.
The counsels submitted on whether the court has jurisdiction to entertain the
appeal.
Court found it had jurisdiction to entertain the appeal. This is because s. 28
of the tax appeal tribunal act provides a right of appeal from the decisions of
the tax appeals tribunal to the high court. The tax payer has two options to
challenge the decision in the high court. According to sec.101 (1)(a) of the
income tax act he may challenge the decision of the high court. The tax payer
must apply for leave of the court of appeal to appeal the decision of the high
court.

200
Since the cross respondent/appellant first challenged the taxation decision in
the tax appeals tribunal, this court had the jurisdiction to entertain this
appeal from the high court.
The appeal was allowed.
4. Bank of Uganda v Transroad Limited (SCCA NO.3/1997) Judgment
of Wambuzi,C.J

There was a contract between the appellant and the respondent for supply of
railway wagons. For some reason, the appellant did not pay for the items.
Hence, the respondent co. which was registered and resident in UK, brought
an action in the UK court resulting into an exparte judgment against the
appellant for the sums claimed. In the UK court proceedings, the appellant did
not show up.

The respondent commenced an action to register the UK judgment at the high

court in Uganda and had also obtained garnishee orders to attach the
appellant’s property.

Both at the high court and court of appeal where the appellant challenged the
intended actions of the respondents, court had dismissed his claims. The
appellant on further appeals of the Supreme Court (this court) she contended
that the UK court lacked jurisdiction for the judgment made against her.

Indeed, the court allowed the appeal, holding that the judgment obtained from
the UK court by the respondent was barred from registration by the high court
of Uganda by virtue of s.3(2)(b) of the reciprocal enforcement of judgment act
(cap 47) since it could not be construed that the appellant submitted the
jurisdiction of the UK court retrospectively.

5. Mbogo and another v Shah (1968) EA 93-CAN Before sir Charles new
bold , P, Sir Clement & Law JA

201
The respondent was knocked down and injured by a vehicle which was owned
by the first appellant and driven by the second appellant at the time. The
respondent notified the insurance company of the vehicle that he intended to
hold that company liable to compensate him. The company denied liability.
On failure to file a defense, the respondent obtained judgment exparte against
the appellants which the insurance company then applied to set aside. His
application was refused by the high court. He then brought this appeal
against the refusal.
It was held as per Newbold P; a court of appeal should not interfere with the
exercise of the discretion of a judge unless it is satisfied that the misdirected
himself in some matter and as a result arrived at a wrong decision or unless it
is manifest from the case as a whole that the judge was clearly wrong in the
exercise of his discretion and that as a result there has been misjustice.
In the instant, the discretion was properly exercised to refuse the application
to set aside the judgment.
The appeal was dismissed.
6. Jaspal Singh Sandhu V Noble Builders (U) Ltd
(see supra in no. 11 on sub topic “appeal from high court to court of
appeal…)
7. Commodity exports international and another v NKM trading co. ltd
and another (CAC APPLICATION NO. 96/2006) RULING OF THE COURT
The application brought by notice of motion under rule 5(2), 42(11) of the
court of appeal rules was seeking orders of stay of the proceedings in the high
court (commercial division) in HCCS NO. 298 OF 2001 pending the
determination of the appeal in this court (COA).
The panel of 3 justices at the court of appeal were faced with a situation of
whether to grant an order of stay of proceedings before the trial judge.
Their lordship concluded that this was not a matter in which court would
exercise its discretion to grant the order ought since no exceptional

202
circumstances were shown by the applicant. The mere ground of the
application that the trail judge had added 2nd applicant as a party to the suit
and there by prejudicing the 2nd appellant was not tenable since the trial
judge used his discretion properly and this court could not interfere. The
court went further to advise that we should be mindful award of joseph
Mulenga SC (as he then was).
Mr. Remmy Kasuule was appointed as the new arbitrator, he awarded the
appellant 2,882,400,000 ug shs being loss of profits and declined to award the
appellants claim of 1,023,644,800/= ug shs.
On further appeal, the COA held that the parties having resolved their
disputes relating to the award by way of settlement, there is no way the court
could again entertain any other claim based on a dispute which had been
resolved by mutual consent of the parties.
The supreme court also affirmed the COA holding that the award of the shs
2,882,400,000 was unforceble by virtue of the settlement which was
voluntarily entered into by the appellant and the respondent.

8. Nalumansi Christine v Hon. Justice Steven Kavuma

(HCMA NO. 155/2008) BEFORE HON. MR. JUSTICE YOROKAMU
BAMWINE
The applicant instituted a suit against the respondent. Later by way of letter
signed both parties entitled “consent” in which the parties agreed to withdraw
the suit. Subsequently, the registrar of the court sanctioned the withdrawal
and closed the file accordingly. After about 2 months, the applicant filed an
application in which she sought orders to set aside the withdrawal by consent
of the part this alleging that the respondent unduly influenced her to sign it.
However, Lord Yorokamu Bamwine disallowed the application reasoning that
the applicant action was terminated when she applied to withdraw the suit.

203
There was no court record of her case. She can continue litigating on this
matter if she files a fresh suit.
In alleging fraud, she had used a wrong procedure, she had to file a fresh suit
to prove evidence on fraud.
The general principle is that unless all the parties agree, a consent order,
when entered, can only be set aside by a fresh action.

9. See also: British American Tobacco(U) Ltd V Sedrach Mwijakubi and

others.
(SCCA NO. 01 OF 2002)
10. UBC V SINBA (K) LTD AND OTHERS (COA KAKURU)
11. GEORGE WILLIAM KATEREGGA V COMMISSIONER LANDS
REGISTRAR AND OTHERS (HCMA NO. 347/13)

204
 TOPIC 9

CONSTITUTIONAL LITIGATION AND ELECTION PETITION

1. ISMAIL SERUGO V KCC AND AG (CONST. PETITION NO. 14/97)

This was a ruling in which the court dismissed the petition when it upheld the
preliminary objections raised by the respondent counsel.

Court found that the petitioner had no cause of action against the 1 st
respondent who was not responsible for detaining him after his arrest.
The court further ruled that the petition had no cause of action against the 2nd
respondent (AG) because its judicial officer, the magistrate who tried and
convicted the petitioner was carrying out his judicial function for which the
government cannot be held liable within s.4 (6) of the government proceedings
act, cap 69.
There was even no question of interpretation under act 137 of the
constitutional, accordingly court had jurisdiction.
Further still, still the action was found to be time barred.
In the result, the petition was dismissed.
2. Josephine Nanteza V Masiga George
(Const Petition no. 9 of 1998)
This was a reference made to this court by magistrate grade II of Kiira
magistrate court under article 137(1) and 5 (a) of the 1995 constitution in civil
suit no. 4/95. The main issue for determination was whether the defendant in
that suit was a bonifade occupant within the meaning of article 237(8) of the
constitution.
The brief background of the case was that the plaintiff Josephine Nanteza, a
registered proprietor of the suit property sued the defendant for trespass
seeking order for eviction. The defense was that the defendant is a bonifade

205
occupant and therefore his right to occupy the land was protected under
article 237(8) of the constitution.

The parties conceded that article 237(8) of the constitution was a transitional
provision and that following the enactment of the land act 1998 under article
237(9) of the constitution the relationship between the parties is now
regulated by the land act. Section 30(2) of the act defines the term “bonifade
occupant” parliament having defined what bonifade occupant is, there was
nothing that required interpretation by this court.
Accordingly, the matter was remitted to the trial court to deal with it in
accordance with the provision of the land act.

3. Arutu john v AG (const. petition no. 4 of 1997)

In the course of the trail in the magistrates court, the petititoner raised
objection that he cannot be prosecuted for acts done in the course of judicial
proceedings.
On this he filed two actions to the constitutional court, one being a reference
and another a petition.
The court held that reference should be made in accordance with the decision
of the Supreme Court in civil appeal no. 7/92 AG v Milton Obote Foundation
Ltd and Another. That is to defer the petition and remit the reference to the
trial court to continue with the proceedings as soon as it is practible and
make a reference to this (the constitutional court) if it is justified on evidence
before it. Const. petition no. 4 of 1997 was ordered stayed for the meantime.

4. Charles Onyango Obbo v AG (const. petition no. 15/1997)

Judgment of Twinemujuni, JA
The petition was brought under article 137(3) of the constitution seeking for
declaration that the decision of the state to criminally prosecute them for

206
publishing an article captioned “KABILA PAID UGANDA IN GOLD-SAYA
REPORT” published in the Sunday monitor is an act by any person or
authority which is inconsistent or in contravention of the constitution within
the meaning of art 137(3)(b) of the constitution , further that section 50 of the
PCA under which the petitioners were prosecuted is itself inconsistent with
the constitution under A. 137(3)(a) of the constitutional.
By a majority of 4 to 1 court declined to make the declarations sought and the
petition was dismissed.
In his dissenting judgment, justice Twinomujuni allowed the appeal in part;
he found s-50 of the penal code act inconsistent with the constitution.

5. Al Hajji Naser Ntege Sebaggala v AG and 2 Others

(const. petition no. 1/1999)
The petitioner brought the petition under article 50 and 137 of the
constitution seeking declarations, inter alia, that the solicitors letter by which
he interpreted the constitution, he wrongly interepted its provisions.
The brief background is that the petitioner was elected mayor of Kampala in
1998, sometime later he was jailed by the US district county court of
Massachusetts, his mayoral seat was announced vacant and the respondents
were in the process of replacing him.
The respondent raised a number of objections; relating to competence of the
affidavit in support of the petition, jurisdiction of the court, that the petition is
time-barred and also that the petitioner has no locus.
In the result, the petition was dismissed, it was time-barred. Court also
overruled objection as to its jurisdiction when it stated that even where some
constitutional provisions had been incorporated in the local government’s act,
that did not oust the jurisdiction of the court.
The petitioner was also found not to have locus against the 3rd respondent
who was only playing their role as envisaged by the law to organize elections.

207
The petition was dismissed.

6. Uganda journalists safety committee and another v AG

(Constitutional petition n0.6/1997)
The petitioner complained that his conviction was in contravention of several
provisions of the constitution and that his rights had been violated. He stated
that he was bringing the petition under article 50 and article 137 of the
constitution but in fact it was brought under article 50.
The court held that the constitutional court was created as a new court by
article 137 of the constitution for the sole purpose for the interpretation of the
constitution either following a reference under legal notice no. 3 or by means
of a petition under legal notice no. 4 of 1996. The constitutional court is
therefore not a proper forum for person seeking redress under article 50 of the
constitution.
It was also found that the petition was time barred as it was not brought
within 30 days as required by rule 4(1) of legal notice 4.
Court also found that the petition was not valid as it was not accompanied by
an affidavit.
In the result, the respondents preliminary objections were upheld and the
petition was struck with costs to the respondents.
7. Dr. James Rwanyarare and Another v AG (const. petition no. 11 of
1997)
This was a constitutional petition brought by the 1st petition on his behalf and
for and on behalf of a group (UPC) against the AG seeking several
declarations. P.O’s were raised by the respondent; that the court lacks
jurisdiction to entertain petitioners brought to it directly under article 50 of
the constitution. It can entertain matters under that article only by way of
reference to it by another court under article 137(5). The second objection was
that the suit was time barred.

208
The other objection related to the fact that the petitioner was not entitled to
bring the petition on behalf of the group.
It was held that the petition was time-barred, as the rule on limitation of 30
days is mandatory. It was further held that petitions for enforcement of rights
and freedoms under article 50 do not go to the constitutional court.
That is court only deals with matters brought under article 50, if it by way of
reference to the constitutional court. Accordingly court had no jurisdiction.
It was held further that the petitioner had right to present the petition on
behalf of UPC members since he did not seek their consent. He (petitioner)
could only bring the petition on his own behalf.
The petition was struck out with costs.

8. AG v Joseph Tumushabe (Const. Appeal no. 3/2005)

Judgement of Mulenga, J.S.C.SC)
This appeal arises out of a public interest litigation which the respondent
instituted in the constitutional court under article 137(3) of constitution,
alleging that the detention of 27 persons named in the petition by the UPDF
was inconsistent with and in contravention of provisions of the constitution.
In the petition, the respondent sought diverse declaration and orders for
redress. The appeal is against the judgment of the constitutional court for
holding that the general court martial is a subordinate court and granting a
declaration that the detainees were entitled to be released on bail upon
completing 120 days on remand in custody.
The court affirmed the judgment of the constitutional court and dismissed the
appeal.
9. Bakaluba Peter Mukasa V Nambooze Betty (EPA no-4/2009)
JUDGMENT OF KATUREEBE, JSC.
This was a second appeal to the supreme court, the appellants election to
parliament having been nullified following a petition in the high court by the

209
respondents and this subsequently appeal to the court of appeal having been
dismissed by majority decision of that court of appeal erred when they failed
to deal with the issue of fair trial and make findings on it.
Court found that the irregularity of not petting the particulars of bribery in the
body of the respondents affidavit did not unduly prejudice the appellant in
anyway. In any case, the appellant did not raise that technically before and
since there is no evidence that he suffered any prejudice, thus there was no
basis to find that thre was denial of his right of fair hearing.
In the result, the appeal was dismissed.

10. Mukasa Anthony Harris V Dr. Bayiga Micheal (EPA NO. 18/2007) SC
TSEKOOKO , JSC
This was an appeal from the decision of the court of appeal which upheld the
judgment of the high court (Musoke-Kibuuka J) allowing a petition filed by
respondent. The judge set aside the election of the appellant and declared the
parliamentary seat vacant.
One of the grounds of the appeal was that the petition was defective from
inception primarily because no notice of presentation of the petition in court
was served on the appellant as required by s.62 of the parliamentary elections
act, 2005 and rule 6(1) of the parliamentary election (election petitions rules)
On this ground, the court held that the appellant got the petition and was not
prejudiced; therefore the lower courts were right in declining to dismiss the
petition on account of non-service of the petition.
In the result, the grounds of appeal were found not to have merit and the
appeal was dismissed.

11. Paul Mwira V Hon Igeme Nathan and others (EPA/….

210
NO. 6/2011) JUDGMENT OF BYAMUGISHA.
This was an appeal against the dismissal of an election petition before the trial
judge.
The grounds of the appeal, that the respondent had committed bribery of
voters and also that the first respondent did not have the minimum
qualification s to be nominated as MP.

Court allowed the appeal, finding that the 1st respondent personally
committed the offence of bribery and on this ground alone his election as Jinja
east constituency MP was nullified.

12. Abdul Balingira Nakendo V Patrick Mwondha (SC EPA NO. 06/2011)
Judgment of Katurrebe, JSC
The respondent files and election petition to the high court which was allowed,
the appellant unsuccessfully appealed to the court of appeal, hence this
appeal to the Supreme Court.
The appeal was dismissed as court found that the court of appeal had
properly evaluated all the evidence and reached its conclusions. On the issue
of respondents departing from its pleadings, court also found no merit in it.
On the question of costs, the appellants counsel argued that since election
petitions are matters of public interest, so no costs should have been made,
this ground also failed because the court observed that much as they are
matters of public interests, but also costs are incurred and therefore should
be awarded to the successful party.

JUDICIAL REVIEW PROCEDURE

HIS WORSHIP AGGREY BWIRE v AG and judicial service commission

(Civil appeal no. 09 of 2009 JUDGMENT OF A.E.N MPAGI BAHIGEINE, JA

211
This appeal was against the ruling and orders of the high court dismissing the
appellant’s application for a judicial review.
The facts; the appellant was a grade I magistrate stationed at Nabweru court.
He was interdicted before the disciplinary committee of the judicial service
commission pending investigation and final decision of the judicial service
commission which by the time of this appeal dismissed.
The appellant, the court found that the trial judge was correct in dismissing
the application for judicial review since judicial review can only be granted on
three grounds; illegality, irrationality and procedural impropriety. In the
instant, the proceedings before the committee were not irregular.
In the result, the appeal was dismissed, the appellant having failed on all
grounds.
Inherent jurisdiction and justice
1. Stephen Mabosi V Uganda Revenue Authority (SCCA NO. 16/1995)
Ruling Odoki, JSC
The application was seeking to strike out a notice of appeal filed by the
respondent.
The main ground for the application was that the respondent had not
instituted the appeal within sixty days of filing the notice of appeal as required
by r.81(1) of the rules of the court (SC)

His lordship found that the time started running when the respondent
received a copy of the proceedings from the registrar whose duty it was to
supply it with a copy of the proceedings. Accordingly the respondent was
within time for filing the appeal.
Applying article 126(2)(e) of the constitution, the technicalities of the
application were overruled to administer substantive justice.
In the result, the application was dismissed with costs to the respondents.

212
2. F.X Mubuke v Uganda Electricity Board (HCMA NO. 98 OF 2005)
BEFORE AG. MR. JUSTICE REMMY KASULE
The applicant was a successful party in a suit in which he alleged termination
of his contract of employment by the defendant.
He was awarded various sums of money for special damages, general damages
and interest at 18% per annum to run from the date of judgment till payment
in full.

The applicant made an application review before another judge ( J. Remmy

Kasule) complaining that there was an apparent error on the face of the record
since according to him interest should have run from the date of filing the suit
and not date of the judgment.

His lordship stated that the general rule is that once judgment is announced
and signed by court, it cannot afterwards be altered or added to by the very
court pronouncing it. Review is an exception to this rule. The remedy available
to a party who is not satisfied with such a judgment or any part of it is to
appeal to a higher court.
Thus, in the instant, court had made a decision on the issue of interest, then
the only remedy available to the applicant was an appeal but not a review.
The application was dismissed with costs.

3. Horizon Coaches Ltd V James Mujuni and Another (HCMA NO.

55/2011)
In that case it was held that once there is sufficient cause that prevented the
applicant from entering appearance when the suit was called for hearing, the
suit should be re-instated.

213
4. Ahmed Kawooya Kaugu v Bangu Aggrey Fred and ……..(EPA NO. 03
OF 2007) (COA)
The COA declined to invoke and make the slip order as the applicant was
found to prompt court to sit in its own appeal. The slip rule serves to give
intention to the judgment of the court.
Court observed further that it should not be persuaded to correct itsv
judgment on the ground of its misunderstanding of the law (as had been
alleged by the applicant) or applying old laws, as this would open a very wide
door leading to chaos.
a. Horizon coaches ltd v James Mujini and another HCMA NO.
55/2011
Held: `
“Once there is sufficient cause that prevented the applicant from entering
appearance when the suit was called for hearing the suit should be re-
instated.”
Review
b. Flora Wasike V Wamboko, held that a consent can be varied or
discharged if obtained by fraud or collusion, by an agreement contrary to the
policy of the court, if given without sufficient material, facts or in general for a
reason that would allow the court set aside an agreement.
c.
d. Degeya trading stores v URA (COA CA NO. 16 OF 1996;
Their lordship of the COA observed that, an applicant seeking leave to appeal
must show either that his intended appeal has reasonable chance of success
or that he has arguable grounds of appeal and has not been guilty of dilatory
conduct.

STAY OF EXECUTION

214
e. Lawrence Musitwa Kyazze v Eunice Busingye SC Civil Appl. No
18/1990 unreported their lordship JJA.
“The practice that this court application is that in general application for stay
should be made informally to the judge who decided the case when judgment
is delivered. The judge may direct that a formal motion be presented on notice
(0.48 ri1) after notice appeal has been filed/ he may in the meantime grant a
temporary stay for this to be done. The parties asking for stay would be
prepared to meet the conditions set out in 0.39 r.4 (3)

REVIEW
1. George William Kateregga v Commission Land Registration and
Others HCMA NO. 347/2013
The applicant there in whose certificate title including those of others had
been cancelled at an earlier suit to which he was not a party filed a fresh suit
against the respondents.
The application was dismissed because according to justice Bashaija K
Andrew, the applicant did not take the advantage open to him of applying for
review but choose to file a fresh suit. (a 3rd party who is legally affected by a
decree or order may apply for review-as was with the applicant)

2. AG & ULC V James Mark Kamoga (SCCA NO. 8 of 2004)

The deputy registrar of the high court had entered judgment in a matter where
parties had consented to a judgment. A high court judge set aside the consent
judgment entered by the registrar. On appeal, the COA overturned the
decision of the trial judge. On appeal by the appellant to the SC.
Their lordship considered the powers of registrars and judges and concluded
that the power to review judgment or orders of the high court, concluding

215
those entered by the registrar is only exercised by the judge (0.46 CPR) and is
not among the powers delegated to the registrar. (as per Mulenga, JSC)
3. F.X Mubuke v Uganda Electricity Board (HCMA NO. 98 OF 2005)
BEFORE AG. MR. JUSTICE REMMY KASULE
For facts (see supra under slip rule)
But there in an application for review was dismissed for failure to satisfy the
grounds for review which court mentioned as;
i) It must be expressed a right conferred by the law like it is with appeals.
ii) The applicant must show that there is a discovery of new and important
evidence which was not within his/her knowledge and would therefore not be
produced by him/her.
iii) That there was some mistake or error apparent on the face of the record.
iv) Any other sufficient reason.
Like it was in Yusufu v Nokrach (supra), court observed that the grounds of
appeals are not necessarily grounds for review.
4. Ahmed Mohammed v Greenland bank (in liquidation)
The high court had dismissed an application for review the COA confirmed
that decision. Hence this appeal to the Supreme Court
The court stated that under 0.46(1)(2) CPR incase an application for the
review of the judgment is refused the dissatisfied party has to seek for leave
before filing an appeal.
0.46 CPR provides that the application for leave must be made first to her
court which made the order sought to be appealed, in the instant, there was
no evidence on record that an application for leave to appeal to the COA was
made in the high court.
Consequently, there was no competent appeal before the COA and this
Supreme Court.

216
REVISION
Paskali juma wasike v alex onyango and others (HCT-04-CV-MA-0004-
2010) BEFORE JUSTICE STEPHEN MUSOTA
The applicant filed this application for revision under s. 83 and 98 CPA
seeking court to revise the LC.I of Mbaja Mugungu judgment and the chief
magistrates decree and execution orders.
His lordship however found that whatever the LC I court of Mbaija did was
within their jurisdiction cannot be a subject for revision.
No revision orders were made.
2. Gulu Municipal Council N Nyeko Gabriel And Others (HCCS 77/96
(AT GULU 14. 5. 97) BEFORE : OKELLO ,J
The 1st respondent sued the applicant local government in the chief
magistrates court at Gulu for breach of contract whereof having served the
applicant with a statutory notice and before its expiry applied and the trial
magistrate proceeded exparte, entered judgment to decree (GI)

In an application for revision, his lordship held that there is no prescribed

procedure to initiate revision proceedings under s. 84 (now 83) CPA, however,
an applicant aggrieved by a decision of the magistrate court may apply to the
high court to have the decision of the M/C revised.
In the instant, the 60 days of service of statutory notices to the applicant had
not expired.
Application was allowed.

APPEALS
c. Namuddu v Uganda (crim appl. No. 3/1999) WAMBUZI CJ
This was a criminal case where the COA denied the applicant leave to appeal
against its decision. Court (SC) observed that for it to grant leave, the court

217
(SC) is not restricted to the decision of the COA once that court refuses to
grant the requisite certificate.
That further still, the court was not confined to only matters which were
considered by the COA before it declined to give the certificate.
In the result, the application was allowed.

APPEALS IN THE L.C COURTS

1. Mutonyi Magret Wakyala V Tito Wakyala. (Hct-04-Cv-Cr-0007-2011)
Before J. Musoota
Although this a matter for revision of orders of LC III court, court took the
initiative to discuss the appeal process in a LC courts and the court of the first
instance being the village council (LC I)
That Establishment, Structure And Composition is provided by the LC courts
act. Which must be read together with the LC courts regulations (2007).
In the instant, court set aside the orders of the LC III COURT which
entertained land matters as a court of 1st instance where as not.
The court of 1st instance is LCIIII and still automatically to the chief
magistrate.
Thus readings S.11 court does not have original jurisdiction.

APPEALS FROM ORDERS OF REGISTRARS TO HIGH COURT

1. JB Byamugisha v NSSF (HCM cause no. 25/27 and 28 OF

2011)Before Hon. Justice Christopher Madrama
This was a ruling arising from a reference by the registrar of the commercial
court division for directions as to her jurisdiction.

218
The issue was whether the reference was properly before a judge of the high
court.
The issue related to taxation of advocate-client bill of costs.
His lordship found that the registrar had ruled on the matter subject to the
reference and the same could not be referred to as judge of high court.
Nonetheless, he advised the respondent to seek an extension of time within
which to appeal that decision.
The instant reference was equally instigated at the instance of the
respondents letter and yet s.61(3) of the advocates act and the advocates act
and the advocates (taxation of costs) appeals and references) regulations bares
reference by the parties.

Consequently, Lord Madrama referred the file back to the registrar to complete
the taxation of the advocate/client bill of costs.

APPEALS IN MAGISTRATE COURT AND MAGISTRATE COURT TO HIGH

COURT

1. Sekyala James V Godfrey Kyakwambala (Civil Appeal no. 07/2010)

Before Lady Justice Monica K. Mugenyi
This was an appeal from a decision of Mengo Chief Magistrate’s court in civil
suit 509 of 2009. The respondent raised a P.O in which he argued that the
memo of appeal was filed out of time and therefore improperly before the court
i.e. it should have been lodged within 30 days from the date of the order or
decree (s.79) CPA.
Court explained that the inference to be drawn from s.79(2) is that time of
limitation starts running from the date the decree or order appealed from ,
and record of proceedings are available to the intending appellant. In the

219
instant, the lower court took long to prepare the record of proceedings and
both under s.220 MCA and 0.43 CPR, the provisions were silent on any
certificate from the trial record of proceedings as he had been contended by
the respondent.
Consequently, since the appellant had taken an initial step in the proceedings,
court was inclined to grant leave to the appellant to serve the opposite party
with in his memorandum of appeal.
The preliminary objection was overruled.

APPEALS
1. Ahmed Kawoya Kaugu V Bangu Aggrey Fred And the electoral
commission (Civil application no. 4/2007) (SC)
JUSTICE BART KATUREEBE.
This was an application seeking for extension of time within which to file a
notice of appeal against the decision of the COA.
Objections were raised by the respondent as to lack of jurisdiction of the SC
to entertain the application.
The issue was whether the applicant has a right of appeal to the Supreme
Court.
His lordship found that s. 145(3) (Local Government Act) did not confer a right
of appeal to the supreme court for an aggrieved candidate for LCI election
appeals. Jurisdiction is not a matter of inference but should be expressly
provided in the law (R.Bakhu and another v AG was cited)
Not even s.6(1) of the judicature act could save the application since it dealt
with civil appeal and not election appeals.
The application failed and consequently, the merits for extension of time for
filing a notice of appeal could not be considered.

220
The application was dismissed with costs (29th march 2007)

2. Ahmed Kawooya Kaugu V Bangu Aggrey Fred (COA) (EPA NO. 3 OF

2007)
The application was purportedly for a slip order for court to reflect the
intention to its judgment.
The application was dismissed since it was clearly and designedly an appeal
camouflaged as an application for a slip order.

It was observed that court should not be persuaded to connect its judgment
on the ground of its misunderstanding of the law or applying old laws, as this
would open a very wide door leading to chaos.

3. UNEB V Mparo General Contractors Ltd (CA CIV. REF NO. 99 OF

2003) BEFORE JUSTICE AMOS TWINOMUJUNI
A document purportedly called memorandum of reference was lodged more
than two months from the date of taxation by the registrar and received in the
COA on 2nd October 2003. This was not within the 7 days stipulated in then
rule 109(5) of COA rules and since no leave of court had been obtained, his
lordship declared the reference invalid and struck it off.

APPEALS IN COURT OF APPEAL, SUPREME COURT AND STAY OF

EXECUTION

Kyambogo University V Prof. Ndiege (J. Kakuru) Maniraguha Gashumba V

Sam Nkaniye (panel of 3 COA JUSTICE)
For facts, see case no. 5 under topic 5; meaning, pre-requisite of valid
judgment)

221
As 2ND appeal, the court is not required to re-evaluate the evidence as this is
the role of the 1st appellate court. See Pandya v r (1957) EA 336 and Okeno v
R (1972) EA 32.
A 2nd appellate court only considers the relevant point of law or mixed law and
fact as raised in the 2nd appeal.
It may if the 1st app. only interfere Court misdirected itself.
Kyambogo University V Prof. Isaiah Omolo Ndiege (COA CIV –APPL. NO.
341/2013) JUSTICE KENETH KAKURU
The application was for an interim order of stay of execution pending a
substantive application for stay of execution before a full bench of this court
(COA)
The application was dismissed with costs, whereof his lordship found that not
all appealable orders or decrees can result into a grant of an order of stay of
execution.
This was nothing to stay in the instant application.
Court also cited the Supreme Court case of Lawrence Musiitwa Kyazze v
Eunice Busingjye Civil Application no. 18 of 1990 for the authority that
application for stay of execution ought first to be made at the high court and
then on failure to the COA.
The law recognizes that not all decrees or orders appealed from have to be
stayed pending appeal. It recognizes a fact that an appeal may be determined
without the court having to grant a staying of execution.
The learned trial judge had ruled in an application for judicial review before
him that the applicant recommend the removal of the respective from office
without giving him a fair hearing , thus he was re-instated as VC of Kyambogo
University. No execution orders were made, so no order for stay could be
granted by court.

222