Civil Procedure LL LLB IV Notes

ISLAMIC UNIVERSITY IN UGANDA
KAMPALA CAMPUS
FACULTY OF LAW
CIVIL PROCEDURE II
LL.B 1V 2018/2019
COURSE OUTLINE
GENERAL OUTLINE
This course outline is an advanced one and is designed to impart to law students the practice and
modalities of prosecuting or defending a civil action from the time one thinks to go to court through
to the final judgment and the process of execution. It is a continuation of the course outline covered in
the 1st semester, and in some instances, there are overlapping principles. The course extends to
conduct of civil proceedings, the process of trial right from scheduling conference to conclusion of
the trial. Other aspects covered include termination of a suit either by way of entering judgment or
dismissals and the relief available to the respective parties, adjournments and preliminary objections,
res-judicata, among others in terms of procedure, practice and legal consequences. Specific aspects
like election petitions and constitutional petitions may also covered.
Further, under consideration are interlocutory remedies like temporary injunctions, interim orders,
and attachment before judgment and security for costs. It also examines the corrective remedies,
including the slip rule, judicial review, appeals right from the Local Council Courts up to the
Supreme Court, review and revision as well as references and case stated procedures. The course is
intended to enable students understand general ideas and practice of civil litigation and remedies
available at law to aggrieved persons. Civil Procedures are there to guide the parties in their
endeavours to solve their civil disputes.
In view of the modern trend that going to court should be a matter of last resort, focus is had to
possibilities of solving dispute out of court, which should be fully explored before an individual
decides to institute his case in a court of law or even in the course of proceedings. This approach
minimizes costs, saves time, and reduces the stress and anxiety that an individual experience during
court actions. Note however that this reading guide only serves as a general guide. New cases,
articles, journals books and other materials bearing on the course should be added by students
through own initiatives.
This advanced version of the course outline has been made to cover recent reported cases.. It has also
included the most recent unreported cases. However students should be aware that this is not self-
sufficient as such they may consult as many cases as possible. The same should apply to textbooks
and other reference materials.
It is expected that at the end the course, a student will have been well acquainted with the niceties of
civil litigation, and that, looking at the rigours of civil litigation in general.
READING LIST
LEGISLATION
1. The Constitution of the Republic of Uganda 1995
2. The Judicature Act Cap 13
3. The Civil Procedure Act (Cap 71)
4. The Magistrates Court’s Act. Cap 16 as amended
5. The Government Proceedings Act (Cap 77)
6. The Law Reform (Miscellaneous Provisions) Act (Cap 79)
7. The Civil Procedure and Limitation (Miscellaneous Provision) Act (Cap 72)
8. The Supreme Court Rules Directions 1996
9. The Court of Appeal Rules Directions 1996
10. The Judicature Mediation Rules 2013
11. The Judicature (Habeas Corpus) Rules
12. The Judicature (Judicial Review) Rules SI 11 /2009
13. The Civil Procedure Rules SI 71-1
14. The Government Proceedings(Civil Procedure)Rules
15. Practice Direction No.1 of 2002 Judicial Powers of Registrars (High Court)
16. Practice Direction No.2/2005 Practice Direction on Presentation of Both Oral & Written
Submissions & Arguments in the Supreme Court
17. Practice Direction No. 1/2004, Judicature (Court of Appeal (Judicial Powers of Registrars
18. Others as shall from time to time be referred to in the course of class discussions.
TEXT BOOKS, ARTICLES AND OTHER REFERENCE MATERIALS

1. SPRY: Civil Procedure in East Africa
2. KIAPI: Practice Manual Series; Civil Procedure
3. CHATALEY & RAO; The Code Civil Procedure
4. LANGN; Civil Procedure and Evidence in EAST Africa.
5. HARWOOD; Odgers on Pleading and Practice
6. BULLEN; & LEAKE: Precedents of Pleadings
7. M. Ssekaana & S. N Ssekaana; Civil Procedure & Practice in Uganda
8. Trouble Shooting Issues in Civil Matters, Areas to Watch Out for; A view from the
Bar by JMM Mugisha
9. The Role of an Advocate and a Litigant during Scheduling Conference by JMM Mugisha
2003
COURSE OVER-VIEW AND CONTENT

Over view of Civil Procedure 11, the Scope, the law, procedure and Practice generally. See the
course outline herein above.
TOPIC 1
SUMMARY PROCEDURE AND ALL APPLICATIONS UNDER ORDER 36 CPR
[Including propriety of summary procedure, mode of commencement, leave to appear and defend,
default judgments, setting aside default judgments, setting aside and stay of execution
Scope of Application of Order 36)
1. Nakabago Co-Op Society –V- Livingstone Changa HCCS No.4/1991
2. Read rule 17 (1) & (2) of the Government Proceedings (Civil Procedure Rules) on applicability
where Government (AG) is involved.
3. Thomas Irumba V AG [1991] HCB 90;
4. Agasa Maingi V AG HCCS No.0095/2002
5. AG V Sengendo (1972) EA 356
The Rationale for Summary Procedure
1. Kyoma Byemaro John versus Agro Finance Trust Ltd HCMA No. 376/2011
2. Sembule Investment Ltd versus Uganda Baati Limited HCMA No. 664/2009
3. Zola & Anor. Versus Rallis Brothers Ltd [1969] EA 691
4. Post Bank (U) Ltd vs. Ssozi SCCA No. 8/2015
Nature of claims for which Summary Procedure is Suitable
1. Read order 36 r. 2 (a) & (b)
2. Sterling travel and tour services ltd vs. Millennium Travel & tours services Ltd; HCMA No.
116 / 2013:
3. George William Semivule vs. Barclays Bank of Uganda Ltd – [ 2010] HCB Volume I 82
4. Begumisa George Vs. East African Development Bank HCMA No.0451/2010
5. Shelter Ltd Vs. Anastazia Nakazi HCMA No. 55/2002
6. U.T.C. –V- Pasture [1954] 21 EACA 163
7. Kasule-V- Kaweesa [1957] EA 611
8. Budai Coffee Hulling Factory Ltd vs. Babumba [1963] EA 613
Legal effect and procedure where claim is both liquidated & liquidated
116 / 2013:
2. Hanani Moezali vs. Moez Ramani HCCS No. 416/2001
3. Dembe Trading Enterprises Ltd V Uganda Confidential Ltd & Anor. HCCS No.0612 of 2006
4. Valery Alia Vs. Alionzi John HCCS No. 157/2010
5. Shelter Ltd Vs. Anastazia Nakazi HCMA No. 55/2002
6. UTC Vs. Count De La Pasture (3) [1954] 21 EACA 163
Default Judgment under O.36
7. Uganda Telecom Ltd versus Airtel Uganda Ltd HCMA No.30/2011
8. Pinnacle Projects Limited V Business in Motion Consultants Ltd HCMA No.362/2010.
9. Mugume vs. Akankwasa [2008] HCB 682
10. Craig V Kansen [1943] 1 ALLER 108
11. Edison Kanyabwera V Pastori Tumwebaze SCCA No.6 of 2005
12. Post Bank (U) Ltd vs. Ssozi SCCA No. 8/2015
Applications for Leave to Appear and Defend
a) Procedure of Application
116 / 2013:
2. Uganda Red Cross vs. Kangaroo (U) Ltd HCMA 919/2014,
3. Mugoya vs. Buyinza HCMA No. 1152/2014
4. Francis W. Bwengye V Haki Bonera HCT-00-CV-CA No.033-2009
5. Ready Agro Suppliers Ltd & Others V UDB HCMA No.0379 Of 2005
6. Southern Investment Ltd vs. Mukabira Foundation Investments HCMA No. 105 / 2004
7. Zzimwe Hardware and Construction Enter. Ltd V Barclays Bank (U) Ltd HCT-00-CC-MA-
051-2008
8. Acaali Manzi Vs. Nile Bank Ltd [1994] KALR 123
9. UCB –V- Mukoome Agencies [1982] HCB 22
10. Century Enterprises Ltd V Greenland Bank in Liquidation HCMA No. 916 of 2004
11. Rwabuganda Godfrey vs Bitamisi Numuddu CACA No. 23/2009
b) Forum for filing Application
Pinnacle Projects Limited V Business in Motion Consultants Ltd HCMA No.362/2010
c) Time for Filing the Application
1. Ready Agro Suppliers Ltd & Others V UDB HCMA No.0379 Of 2005
2. Pinnacle Projects Limited V Business in Motion Consultants Ltd HCMA No.362/2010
3. Venture Communications Ltd Vs. Vertex Prudential Commerce Inc HCMA No.604/2004
4. Zam Zam Noel & Others Vs. Post Bank Ltd HCMA No.530/2008
5. Republic Motors Ltd-V- Atlantic Decorations [1982] HCB 104
d) Applications filed out of time, Consequences and remedy
1. Pinnacle Projects Limited V Business in Motion Consultants Ltd HCMA No.362/2010
2. Zam Zam Noel & Others Vs. Post Bank Ltd HCMA No.530/2008
3. Venture Communications Ltd Vs. Vertex Prudential Commerce Inc HCMA No.604/2004
4. Twentsche Overseas Trading Co. Ltd vs. Bombay Garage Ltd [1958] EA 741
5. UNEB V Mparo General Contractors Ltd CAC Reference No.99 of 2003
6. GW Wanendeya V Stanbic Bank (U) Ltd HCT-00-CC-CS-0486-2005
7. Magem Enterprises V Uganda Breweries (1992) 5 KALR 109
8. Dr. Ahmed Kisuule versus Greenland Bank in Liquidation HCMA No. 2/2012.
9. Musa Sbeity & Anor. Versus Akello Joan HCMA No. 385/2013
e) Grounds in Support of Application
1. Broadband company ltd vs. Joram Mugume HCMA No. 363/2013 –
2. Begumisa George Vs. East African Development Bank HCMA No.0451/2010
3. R.L Jain V Kasozi Michael& Anor HCMA No.585/2007
4. The Jubilee Insurance Co. Ltd Vs. Fifi Transporters HCMA No.211/2008
5. Photo Focus (U) Ltd V Group Four Security Ltd CA No.30/2000 CA
6. Zzimwe Hardware and Construction Enter. Ltd V Barclays Bank (U) Ltd HCT-00-CC-
MA-051-2008
7. Central Electrical International Ltd Vs. Eastern Builders and Engineers Ltd HCT-00-CC-
MA 0176-2008
8. Management Committee of St Savio Junior School Vs. Mugerwa Commercial Agency Ltd
HCMA No.183/2004
f) Test and threshold
116 / 2013:
2. Bitagase & Anor Versus Mugambe Kenneth HCMA No. 470/2012
3. Bibangamba vsMungereza HCMA No. 103 / 2012
4. Uganda Micro Enterprises Association Ltd & Anor. V The Micro Finance Support Center
HCMA 125 of 2005 HCCS No. 1007 Of 2004
5. Maluku Interglobal –V-Bank Of Uganda [983] HCB 63
g) Opposing Application for leave

1. Sebyala Kiwanuka & Anor versus Sendi Edward HCMA No. 500/2014
2. Elias Waziri & 2 Others Vs. Opportunity Bank (U) Ltd HCMA No. 599/2013 (HC)
3. Sterling travel and tour services Ltd vs. Millennium Travel & tours services Ltd; HCMA No.
116 / 2013:
4. Stop & See (U) Ltd Versus Tropical Africa Bank Ltd HCMA No.333/2010
h) Conditional or Unconditional Leave

1. Tusker Mattresses U Ltd V Royal Care Pharmaceuticals Ltd HCMA No.38/2010
2. Kundanlala Restaurant Versus Devshi [1952] 19 EACA 77
i) Setting aside Decree, Leave to appear and defend, setting aside execution and stay of
execution 036R.11
Applicability;
2. Konoweeka Architecture Painters and Builders Ltd vers. Daniel L. Mukasa [1976] HCB 222
Procedure
1. Francis W. Bwengye V Haki Bonera HCT-00-CV-CA No.033-2009
2. Pinnacle Projects Limited V Business in Motion Consultants Ltd HCMA No.362/2010.
3. Elias Waziri & 2 Others Vs. Opportunity Bank (U) Ltd HCMA No. 599/2013 (HC)
4. Magem Enterprises V Uganda Breweries (1992) 5 KALR 109 (omnibus application
5. Dr. Ahmed Kisuule versus Greenland Bank in Liquidation HCMA No. 2/2012.
J) Grounds
1. Musa Sbeity & Anor. Versus Akello Joan HCMA No. 385/2013
3. Ali Ndawula & Anor. V R.L Jain HCMA No.0624of 2008
4. Big ways Construction Ltd V Trentyre (U) Ltd HCMA No. 0832/2005
5. Meddie Ddembe Maji Marefu V Nalongo Namusisi HCMA No.35 Of 2002
6. Zeinab Bandali V Gold Trust Bank HCMA No.800 of 1997.
K) Test and threshold
1. Kensington Africa Limited versus Pankaj Kumar Hemraj Shah HCMA 687/2012
2. Ahmos Investment Group of Companies & 4 Ors vs. Stanbic Bank (U) Ltd HCMA
No. 684/2014
3. Souza Figureldo – V- Moorings Hotel [1959] EA 425
4. UCB –V- Mukoome Agencies [1982] HCB 22
5. Maluku Interglobal vs. Bank of Uganda [1985] HCB 65
6. Caltex V- Kyobe [1988-90] HCB 141
7. Senyange –V- Naks Ltd [1980] HCB 30
Other authorities on the subject as may from time to time be referred to
L)Stay of execution and Interim order of stay of execution
1. Souna Cosmetics Versus URA HCMA No. 424/2011
2. Ali Ndawula & Anor. V R.L Jain HCMA No.0624 of 2008
3. Dr. Mohammed Ahmed Kisuule versus Greenland Bank in Liquidation HCMA No.
02/2012
4. Kisawuzi Henry versus Kayondo Moses HCMA No. 045/2011
TOPIC TWO
AFFIDAVITS
The Applicable Law, the meaning and types of affidavits, distinction between affidavit and
pleadings, circumstances where affidavit evidence is applicable, procedure and manner of
deponing affidavits, common procedural and substantive defects in affidavits/curable defects,
manner of filing and time limits.
The Applicable Law on Affidavit Evidence

1. David Kato Luguza & Anor versus Evelyn Nakafero HCCA
No.37/2011 (2013)
2. Rtd Lt. Saleh Kamba & Others versus AG Hon. Sekikubo & others.
3. Constitutional Applications No.14/16 of 2013
4. Life Insurance Corporation of India V Panesar (1967) EA 615
a) Meaning and Contents of an affidavit

1. Reliable Trustees Limited & 3 others V George F. Sembeguya HCCS No.601 of 1992
2. Margaret & Joel Kato Versus Nulu Nalwoga Civil Appl. No.041/2012 SC
3. David Kato Luguza & Anor versus Evelyn Nakafeero HCCA
4. No.37/2011
5. Uganda Micro Finance Lnion Ltd. Vs Sebuufu Richard and Anor
HCT-OO-CC-MA 0610-2007
6. Kakooza Jonathan & Anor V Kasaala Growers Coop. Society SC Application No.1/2001
b) Circumstances where Affidavit Evidence is Applicable, Cross

examination of Deponents, Procedure and the Practice
1. Rtd L t. Saleh Kamba & Others versus Ag. Hon Sekikubo & Others.
Constitutional Application No.14/16 of 2013
2. Thornhill-V- Thornhill (965) EA 268
3. Prernchand Rainchand - V- Quary Services Ltd (1960)EA 517
4. Mulowooza & Bros Vs. N. Shah & Co. Ltd SCC Application No.
20/2010
c) Types of Affidavits,
1. Southern Investment Ltd vs Mukabira Foundation Investments
HCMA No. 105/2004
2. Kakooza Jonathan & Anor V Kasaala Growers Co-op Society SC
Application No. 13/2011
3. Jane Lugolobi & 9 others vs Gerald Segirinya HCMA No 371/2001
4. Energo Project V Brigadier Kasirye Gwanga & Anor. HCMA No.
558/2009
5. Samuel Mayanja V URA HCT -00-CC-MC-0017-2005
6. Ready Agro Suppliers Ltd & Others V UDB HCMA No.0379 of
2005
7. Jayanth Amratlal & Anor Vs Prime finance Co. Limited HCT-CC-
MA-225-2008
8. Kakande Kenneth Paul Versus Fred Ruhindi Constitutional
Petition No.2006
d) Procedure of Deponing Affidavits, including Affidavits by

Illiterates
1. Mefika Matsebula Versus Mandra Ngwenya (4306/10)[2012]
SZHC142(August 2012)
2. Kakooza Jonathan & Anor V Kasala Growers Co-opsociety SC
Application No.13/2011
3. Hon Theodore & others Versus Rtd (LT) Saleh Kamba & others
SCC Application No. of 2014
4. Kakooza John Baptist V Electoral Commission Anor. SC EP A
N’O. 11/1997
5. Mayende Peter Patrick V Mayende Stephen Dede & Anor
Election Petition No. 15/2011
6. Ngoma Ngime V EC & Winnie Byanyima EPA No. 11 of 2002
CA
7. Mugema Peter Versus Mudiobole Abed Nasser EPA
No.030/2011
e) Affidavits Deponed in Representative Capacity

1. Solome Nabyonga Versus Zion Estates Limited HCMA
N 0.872//2015
2. Solome Nabyonga Versus Zion Estates Limited HCMA
N 0.872//2015
3. Stephen Mukuye & Others Versus Madhivani Group Limited
HCMA No. 0821/2013
4. Ready Agro Suppliers Limited Versus Uganda Development
Bank (Supra)
5. Taremwa Kamishani Versus Attorney General Mise. Cause No.
0038/2012
6. Hajji Edirisa Kasule Versus Housing Finance Bank Limited
HCMA NO. 667/2013
(f) Requirement to state Date and Place of Deponing an Affidavit and effect on non-compliance;
1. Hon Theodore Sekikubo & others Versus Rtd (L T) Saleh Kamba &
others SCC Application No. 03 of 2013
2. Mwiru Paul Versus Hon Igeme Nathan Nabeta Election Petition No.
6/2011
3. Gordon Sentibaand2 others versus IGG CA [2008] HCB 356
4. Kakooza John Baptist V Electoral Commission and Anor.SC EPA No.
11/1997
5. Justice Remy Kasule V Hon Winnie Byanyima & Jack Sabiiti HCCS
No.230/2006
6. Saggu V Road Master Cycles U Ltd [2002]1 EA 261
7. Eng. Yorokarnu Katwiremu Vs. Elijah Mushemeza [1997] 11 KALR 66
8. Mbayo Jacob vs Electoral Commission and Anor. CA EPA No.07/2006
9. Namazzi Vs. Sibo (1986) HCB 58
10. Male Mabirizi vs The ATTORNEY General Misc. Application No. 7 of 2018
(g) Commissioning of Affidavits, implications and effect of non

Compliance
1. Hon Theodore Sekikubo &others Versus Rtd (L T) Saleh Kamba &
others SCC Application No. 03 of 2013
2. Kakooza John Baptist V Electoral Commission and Anor. SC EP A
No.ll/1997
3. Standard Chattered Bank V Mwesigwa Phillip HCMA·No.
477/2012
4. Otim Nape George William Vs Ebil Fred & Anor. EP No.
0017/2011
5. Attorney General Vs. APKM Lutaaya [Supreme Court Civil
ApplicationNo. 12 of 2007]
6. Darlindton Bakunda Vs. Stanely Kinyatta: CA No. 27/96
7. Grenland Bank Limited V HK Enterprises Ltd [1997-2001] UCLR
283
8. Anastazia NakaziV Shelter Ltd; HCMA No. 55/2002
(h) Filing of affidavits and Consequences of failure to file Affidavits

1. Sebyala Kiwanuka & Anor. Versus Sendi Edward HCMA
No.500/2004
2. Ready Agro Suppliers Ltd & others V UDB HCMA No. 0379 of 2005
3. Erias Waziri V Opportunity Bank HCMA 599/2013
4. Stop & See (U) Ltd Versus Tropical Africa Bank Ltd HCMA No.333/2010
5. Kakande Keneth Paul V Ruhindi Fred and Anor. Election Petition No. 19/2006
6. Jayanth Amratlal & Anor V Prime Finance Co. Limited HCT-CC-MA-
225-2008
7. Amama Mbabazi V Garuga Musinguzi CA EPA No. 1/2001
8. Jane Lugolobi & 9 Others V Gerald Segirinya HCMA No. 371/2001
9. Energo Project V Brigadier Kasirye Gwanga & Anor. HC1\,1A No.
558/2009
10. Samwiri Massa V Rose Achen(1978)HCB 297
11. Re: Lokana Okoth [1975]HCB 204
12. 0dongkara V Kampala [1968] EA 210
i) FalsehoodsinAffidavits
1. Jetha Brothers Ltd V Mbarara Municipal Council &4 others HMCA
No.31 of 2004
2. Uganda Micro Finance Union Ltd. Vs Sebuufu Richard and Anor
HJCT-OO-CC-MA 0610-2007
3. Bitaitana-V-Kananura [1977] HCB 34
4. Bigways Construction Ltd V Trentyre (U) Ltd. HCMA No. 0832/2005
5. Joseph Mulenga Vs Photo Focus (U) Ltd.[1996] V KALR 19
6. Meddie Ddembe Maji Marefu Vs Nalongo Namusisi HCMA No.35
of 2002
7. Pinnacle Projects Limited Vs Business in Motion Consultants Ltd.
HCMA No.362/2010
8. Kakooza Jonathan & Anor V Kasaala Growers Coop. Society SC
j) Annextures to Affidavits, requirement of sealing and consequences

of non-compliance
1. Kebirungi Justine V MIS Road Tainers Ltd. & Others HCMA No.285
of 2003
2. Lugazi Progressive School & Anor versus Sserunjogi HCMA 50200
3. 3. Kansam Vs Chief Registrar of Titles, Misc. Applic. No.524/1996;
Sebutinde
4. 4. Uganda Cooperative Creameries V Reamation, Court of Appeal 1998
5. Walker-V- Poole [1982] 21 Ch. D 835
k) Affidavits deponed by Advocates, implications and legal

consequences
1. Jayanth Amratlal & Anor Vs Prime Finance Co. Limited HCT-CC-
MA-225-2008
2. Chatrabhuj Laximidas Dalia V Kanoni Importers& Exporters Ltd.
HCMA No.53 of 2001
3. Massa V Achen [1978] HCB 297
4. Ismail Vs Kamukama (1992) III KALR 113
5. Yusuf Abdul Gani Vs Fazal Garage [1955] 28 KLR 17 (K)
l) Inconsistencies, Contradictions in Affidavits and Legal

Consequences
1. Mark Okello Vs David Wassajja CA Civil Ref. No. 54/2005
2. Mugume V Akankwasa [2008] HCB 682
3. Kaingana Vs Dabo Boubou [ 986]HCB 59
4. Bitaitana V Kananura {1977} HCB 34
5. Kakooza Jonathan & Anor Kasaala Growers Coop.5ociety SC
m) Argumentative, prolix and affidavits constituted by irrelevant

subject matter hearsay in Affidavits, disclosure of source of
information, statement of grounds of belief
1. Nakiridde V Hotel International [1987] HCB 85
2. Alia Babwa V Abdul Halimu [1995] V KALR 20
3. Assanand & Sons V E.A. Records [1959] EA 360
4. Hill-V - Harp Davis [1984] 26 Ch.470
5. Eseza Namirembe - V - Musa Kizito [1973] EA 413
6. Myres-V- Akira Ranch [1974] EA 169
7. Nandala - V - Lydiing [1963] EA 706
8. Re Kikoma Saw Millers Co. Ltd.[1976]HCB 50
9. Standard Goods - V- Musa Harakhchand Nathu [1950]17 EACA99
11. Male Mabirizi vs The ATTORNEY General Misc. Application No. 7 of 2018
n) Applicability of Article 126(2) (e) to Defects in Affidavits

1. Banco Arabe Espanol Vs BOU SCCA No.8/1998
2. All sisters Co. Ltd. V Guangzhou Tiger Head Battery Group Co.Ltd.
HCMA No.307/2011
1. Col.Rtd.Dr.Kiiza Besigye Vs Museveni Yoweri Kaguta and ECSSC
EP No.l/2001
2. Kasaala Growers Coop.Society V Kalemera Jonathan SC Civil Applic.
No.24/2011
5. AG V APK~ Lutaaya SCC Applic No. 12/2007
6. Nelson Sande Ndugo V EC HCT EP No.0004 of 2006
Other Authorities as may from time to time be referred to
TOPIC THREE;
TYPES OF JUDGEMENTS
The Applicable Law, the meaning and types of judgments, distinction between the various types of
judgments, circumstances under which each judgment may be entered and the preconditions,
procedure and manner of entering such judgments. Read Order 21, Order 9, Rules 6-11, Order 25,
Order 13, r.o, 0.50 r.2 and 0.36 r.3.
Meaning, Pre-requisites of a Valid Judgment
1. Liberty Construction Co. Ltd versus R.C Munyani & Co. Advocates HCMC No. 8/2011
2. Maniraguha Gashumba versus Sam Nkundiye CACA No. 23/2005 (2013)
3. Caroline Mboijana & Others V James Mboijana SCCA NO. 3 OF 2004
4. Orient Bank Ltd vs. Fredrick Zaabwe and Anor SSC Application No. 17/2007
5. Amrit Goyal V Harichand Goyal and 3 Others CA Civil Application No.109/2004
Judgment and Legal Effect
1. Edith Nantumbwe Versus Mariam Kuteesa Civil Ref. No. 28/2012
2. Housing Finance Bank Ltd & Anor v Edward Musisi CA No.158 of 2010.
3. Re Howard Amani Little CACA No. 32 of 2006
4. Mwiru Paul Vs. Hon Igeme Nathan Nabeta Misc. Cause No.6/2012
5. Hamutenya V Hamutenya [2005] NAHC1
6. F.x Mubuuke V UEB HCMA No.98/2005
7. Amrit Goyal V Harichand Goyal and 3 Others CA Civil Application No.109/2004
8. Kahumbu V National Bank of Kenya (2003) 2 EA 475
9. Orient Bank Ltd V Fredrick William Zaabwe & Anor SCC App No. 2009
10. Hadkinson Vs. Hadkinson [1952] 2 ALLER 267
11. Makula International Ltd V His Eminence Cardinal Nsubuga & Anor. (1982) HCB 11
12. Adam V Libyan Arab Bank SSCA28/1992.
Ordinary Judgment [the law, Procedure and Practice
1. Caroline Mboijana & Others V James Mboijana SCCA NO. 3 OF 2004
2. Orient Bank Ltd vs Fredrick Zaabwe and Anor SSC Application No. 17/2007
Default Judgment [the law, Procedure and Practice,

1. Concern Worldwide versus Mukasa Kugonza HC Civil Revision No. 1/2013
2. Lloyds Forex Bureau versus Securex Agencies (U) Limited HCCS No. 358/2012
3. Twine Amos versus Tamusuza James HC Civ Revision No. 0011/2009
4. Valery Alia versus Alionzi John
6. Mwatsahu Vs. Maro (1967) EA 42
7. Mark Graves vs Balton (U) Ltd HCT-00-CC-MA 0158-2008
8. Magon vs Automan Bank (1968) EA 136
9. Craig Vs. Kansen [1943] 1ALLER 108 Cited in Electoral Commission V Mbabaali Juse
HCT-06-CV-MA No.53/2006
10. Edson Kanyabwera V Pastori Tumwebaze SCCA No.6/2004
Default Judgment against Government (AG)
2. Thomas Irumba V AG [1991] HCB 90;
3. AG V Sengendo (1972) EA 356
4. Edson Kanyabwera V Pastori Tumwebaze SCCA No.6/2004
Interlocutory Judgment
1. NBS Television Limited Versus UBC HCCS No.007/2013
3. Credit Guarantee Insurance Co. of Africa 7 Anor. V Lagoro Holdings Ltd [1997-2001]
UCLR 229
4. Faridah Kabiite V Yusuf Sembuya HCCS No. 683 of 1999
5. Hajji Asumani Mutekanga V Equator Farmers (U) Ltd [1996] KALR70 SC
7. Magon vs Automan Bank (1968) EA 136
8. Korutaro vs. Makairu [1975] HCB 215
Possibility of Obtaining both a default and Interlocutory Judgment in one suit
1. Lloyds Forex Bureau versus Securex Agencies (U) Limited HCCS No. 358/2012
2. NSSF versus Hisubi High School HCCS No. 440/2011
3. Valery Alia versus Alionzi John
Ex parte Judgment [the law, Procedure and Practice]
2. Abenego Ongom V Amos Kaheru [1995] 3 KALR 7
3. DAPCB V Issa Bukenya T/A New Mars War House [1994-95] HCB 60
4. Korutaro vs. Makairu [1975] HCB 215
5. . Magon vs Automan Bank (1968) EA 136
6. Fred Hereri Vs. AG HCCS No. 42/1995
7. AG Vs. Sengendo[1972] EA 356
8. Ssebunya V AG (1980) HCB 69
Judgment on Admission [ the law, Procedure and Practice
1. Brian Kaggwa versus Peter Muramira CACA No. 26/2009 (2014)
2. Dr. Specioza Wandira Kazibwe V Engineer Charles Kazibwe Divorce Petition No
3. Ziraguma Emmanuel & Anor V The Most Rev L.M Nkoyoyo HCCMA NO.0282/2003
4. Central Electrical International Ltd Vs. Eastern Builders and Engineers Ltd HCT-00-CC-MA
0176-2008
5. Juliet Kalema Versus William Kalema CACA No. 95/2003
7. MUK vs Rajab Kagoro(2008) HCB 103
8. Eriaza Magala vs Rev. Kefa Sempangi (1994) 1 KALR 93
9. Sietco vs Impregico Salim HCCS No. 980/1999
10. Wright Kirke Vs. North (1985) Ch 747
Consent Judgments, Compromises [the law, Procedure and Practice

1. George William Kateregga versus Commissioner Land Registration & Others HCMA No.
347/2013
2. Uganda Broadcasting Corporation versus Sinba (K) Ltd & Others CA Civ Application No.
12/2014 (Ruling of Hon. Justice Kakuru; but matter is on appeal to SC)
3. British American Tobacco versus Sedrach Mwijakubi SCCA No. 01/2012
4. Geoffrey Gateete & Anor. V William Kyobe SCCA No.7/2005
5. Wasike V Wamboko [1978-1985] EALR 626
6. Meera Investments Ltd V Jeshang Popat Shah CACA No. 56 of 2003
7. Betuco (U) Ltd & Anor vs Barclays Bank (U) Ltd and Anor HCT -00-cc-MA -0507 – 2009
8. Bank of Baroda (U) ltd vs Ataco Freight Services ltd CACA No. 45/2007
9. Greenland Bank Ltd vs HK Enterprise Ltd & Ors [1997-2001 ] UCLR 282
10. Oil seeds (U) Ltd vs Uganda Development Bank SCCA No. 09/2009
11. Nalumansi Christine V Hon Justice Steven Kavuma HCMA No.155/2008
12. Peter Muliira V Mitchell Courts CACA No.15 of 2002
13. Hirani V Kassam (1952) EACA 131
14. Charles James .M Kamoga & Anor. V AG & ULC CACA NO.74/2002
15. Gordon Sentiba & OTHRS V IGG CACA NO. 14/2007
16. Others authorities as may from time to time be referred to
TOPIC FOUR
SETTING ASIDE OF JUDGMENTS AND DECREES
The Applicable Law, the meaning of setting aside, the circumstances and grounds for setting
aside, the locus to apply, discretionary power of court and limitations thereto, distinction between
setting aside under rule 12 and 27 of order 9 and the applicable remedies where application is
allowed or rejected.
Effect of judgment
347/2013
2. Edith Nantumbwe Versus Mariam Kuteesa Civil Ref. No. 28/2012
3. Housing Finance Bank Ltd & Anor v Edward Musisi CA No.158 of 2010.
4. National Enterprise corp. Vs Mukasa Foods Ltd CACA No. 42/97
5. Re Howard Amani Little CACA No. 32 of 2006
6. Kahumbu V National Bank of Kenya (2003) 2 EA 475
7. The Protector & Gamble Company vs. Kyobe James Mutisho & 2Ors HCMA No. 135/2012
Setting Aside of Judgment and Decree Under Order 36 r. 11

1. Ali Ndawula & Anor. V R.L Jain HCMA No.0624of 2008
2. Big ways Construction Ltd V Trentyre (U) Ltd HCMA No. 0832/2005
3. Meddie Ddembe Maji Marefu V Nalongo Namusisi HCMA No.35 Of 2002
Setting Aside of Judgments and Decrees under O.9 R.12

1. Tweheyo Edison versus Barurengyera Kamusiime Hilary HCCA No. 011/2010 (2013)
2. The Co-operative Bank Ltd Versus Amos Mugisa HCMA No. 549/2009
3. Emiru Angose V Jas Projects Limited HCMA No. 429/2005
4. Ladak Abdalla M. Hussein Vs. Griffiths Igingoma Kakiiza& Others SCCA No.8 of 1995
5. DAPCB V Uganda Blanket Manufacturers [1973] LTD (1982) HCB 119
6. Label (EA) LTD V EF Lutwama CACA NO.4/85
7. Kimani –V- McConnell [1966] EA 547
8. Nicholas Roussous V Gulam H.H Virani & 2 Others SCCA NO.3 of 1993.
9. Patel V Cargo Handling Services {1974] EA 75
Setting Aside of Ex Parte Decrees Under Order 9 Rule 27

1. Al Hajji Abdi & Others versus Tropical Africa Bank HCMA No. 260/2006(2013)
2. Kensington Enterprises Limited & Othrs. Versus Metropolitan Properties Ltd HCMA No.
314/2012
3. Zena Abdalla Okello & Others Versus Mayan Aziz HCMA No. 118/2009
4. Nicholas Roussous V Gulam H.H Virani & 2 Others SCCA NO.3 of 1993
5. Wanendeya William Giboni V Gaboi Kibale Wambi CACA No.08/2002
6. Hikima Kyamanywa V Sajjabi Christopher CACA No. 1/ 2006
7. Zirabamuzale v Correct [1962] EA 694,
8. [Patel V Star Mineral Water & Ice Factory (1961) EA 454,
9. Mitha V Ladak (1960) EA 1054.
10. Patrick Kawooya Vs C. Naava:[1975] HCB 314
11. Label (East Africa ) Ltd V E.F Lutwama CACA No. 4/1985
12. Fabiano Mugerwa & Another Vs Kakungulu [1976] HCB 289;
13. Zirondomu Vs Kyamulabi: 1975 HCB 337
14. Craig Vs Kansen: [1943] 1 ALLER
15. Forthill Bakery Supply Co. Vs Muigai Wangoi [1958] EA
16. Francis Makumbi V NIC 1979] HCB 230
17. Henry Kawalya V J. Kinyankwanzi [1975 HCB 372
18. Mbogo & Anor. V Shah [1968] EA 93
Setting Aside Consent Judgments
1. Peter Mulira V Mitchell Cotts CACA No. 15 of 2002
2. All Sisters Co Ltd V Guangzhou Tiger Head Battery Group Co. Ltd HCMA No. 307/2011
347/2013
4. Charles J.M Kamoga & ANOR. V AG & ULC CACA NO.74/2002
5. Gordon Sentiba & OTHRS V IGG CACA NO. 14/2007
6. Hirani V Kassam [1952] EACA 133
7. Morris Ogwal & OTHRS V AG HCMA No.456/07
8. Geoffrey Gateete & Anor. V William Kyobe SCCA No.7/2005
9. Meera Investments Ltd V Jeshang Popat Shah CACA No. 56 of 2003
10. Betuco (U) Ltd & Anor vs Barclays Bank (U) Ltd and Anor HCT -00-cc-MA -0507 –
2009
11. Nicholas Roussous V Gulam H.H Virani & 2 Others SCCA NO.3 of 1993
Others authorities as may from time to time be referred to
TOPIC FIVE
THE TRIAL, AND PRE TRIAL PROCEDURES
Applicable Law, brief summary of processes after closure of pleadings, mediation, scheduling,
hearing including interlocutory applications and objections, prosecution of suits and dismissals,
re-instatements, grounds and procedure as highlighted herein after. The Elements of trial
advocacy shall be covered in the course.
Cause listing of Cases and service of Hearing Notices

1. Dick Kabali V Rebecca Mawanda AND ANOR (UNREPORTED), Kibuuka Musoke J
2. Frank Katusime V Business Systems Limited
3. Tommy Otto vs. Uganda Wildlife Authority HCCS No. 208/2002
4. Edison Kanyabwera V Pastori Tumwebaze (supra)
5. Kasirye Byaruhanga and Co. Advocates vs Mugerwa Pius Mugalaasi CACA No 87/2008.
6. National Enterprise cor. Vs Mukasa Foods Ltd CACA No. 42/97
7. Brian Kaggwa versus Peter Muramira CACA No. 26/2009 (2014)
Scheduling Conference, Scheduling Memorandum and Framing of issues
1. Anita Among Versus AG of Uganda and Others Ref. No. 6/2012 (EACJ)
2. Abdul Katuntu Versus AG of Uganda and Others Ref. No. 5/2012 (EACJ)
3. Hajji Kassim Ddungu Versus Nakato Nuliat HC CA No. 72/2002(2011)
4. Tororo Cement Co. Frokina International Ltd SCCA NO.2 OF 2001
5. Peter Mulira V Mitechell Cotts CACA NO.15 OF 2002
6. Stanbic Bank Versus Uga Cross Ltd SCCA No.4 /2004
7. Bwanika and Others versus Administrator General SCCA No.7/2003
8. Kakooza John Baptist V Electoral Commission and Anor. SC EPA No. 11/1997
9. Kasirye Byaruhanga and Co. Advocates vs Mugerwa Pius Mugalaasi CACA No 87/2008.
10. Darlington Sakwa & Anor. V Electoral Commission& 44 OTHERS Constitutional Petition
NO. 08 OF 2006,
11. Oriental Insurance Brokers LTD V Trans Ocean LTD CA NO. 55/95,
Preliminary Objections
1. Katabazi & 21 Others Versus AG of Uganda and Anor Ref. No. 01/2007 EACJ
2. Tororo Cement Co. Frokina International Ltd SCCA NO.2 OF 2001
3. Translink (U) td vs Sofitra cargo Services Ltd and ors HCT -00—CC-CS-0561 – 2006
4. Eng. Yashwant Sidpra & Anor. Vs. Sam Ngude Odaka & Others HCT-00-CC—CS 365-2007
5. Mukasa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696 at 701
6. NAS Airport Services Ltd v A.G of Kenya 1959] EA 53
7. Ismail Serugo V KCC & AG SCCA No.2/98 Oder JSC,
8. A-G V Major General David Tinyefuza SSCA No.1/97,
9. IGA V Makerere University [1972] EA 65
10. Western Steamship CO. LTD V Ambaral Sutherland Co. [1814] 2 K.B 55,
11. Others authorities as may from time to time be referred to
Adjournments
Procedure, Grounds
1. Obiga Kania versus Electoral Commission & Anor. EPA No. 04/2011
2. Nulu Kaaya Versus Crescent Transportation Limited SCCA No.06/2012
3. Yahaya Karisa V AG [1997] HCB 29 SC
4. Fred Hereri Vs. AG HCCS No. 42/1995
5. Road Master Cycles V Tarlock Singh [1997 2001] UCLR 378
6. Tiromwe-V Kanoko& ORS [1972] HCB 57
7. Birumi Wilson Vs. Akamba (U) Ltd [1995] 1 KALR 50
8. Maxwell –V- Keun [1928]1 KB 645
9. Dick –V- Piller [1943] 1 AER 627
10. Mbogo& ANOR –V- Shah [1968] EA 93 .
11. Mohindra –V- Mohindra [1953] 20 EACA 56
12. Daniel Kayizzi versus Yosia Bissa
Prosecution of Suits
1. Ssalongo versus Nantegorola [1976] HCB 290
2. Patel versus Gottfriend [1953] 20 EACA 81
3. Shabani versus Karada & Co. Ltd[1973] EA 497
4. Mayers versus Akira Ranch Ltd [1971] EA 56
5. Nyiramakwe versus Bitariho [1973] HCB 58
6. Mukisa Biscuits versus Western Distributors [1960] EA 696
7. Victory versus – Duggal [ 1962] EA 697
8. Nantaba versus Musoke [1988-90] HCB 98
Dismissal andRe-Instatement of Suits

1. Kibugumu Peter Patrick versus Aisha Mulungi &Hassan Bassajabalaba & Anor. HCMA
455/2014
2. Ayub Suleiman Versus Salim Kabambalo CACA No. 32/1995
3. Mohammed Ssalongo Kasule Vs. Edith Nantumbwe & Othrs HCMA No.34/2009
4. A.P Bhimji Ltd v. Michael Opkwo, H.C. Misc. Appl. No. 423 of 2011,
5. Horizon Coaches Ltd Vs. James Mujuni & Anor HCMA No. 55/2011
6. Stewards of Gospel Talent Limited versus Nelson Onyango & Othrs HCMA 014/2008
7. Vita Form (U) Ltd Vs. Euroflex Limited HCCS No.438/2011
8. Uganda Micro Finance Union Ltd Vs. Sebuufu Richard and Anor HCT-00-CC-MA 0610-
2007
9. Mohammed Ssalongo Kasule Vs. Edith Nantumbwe & Othrs HCMA No.34/2009
10. Twiga Chemical Industries Ltd V Viola Bamusedde CACA No. 0 2002;
11. Golooba Godfrey V Harriet Kizito [2007] HCB Vol 1 31
12. Road Master Cycles V Tarlock Singh [1997 2001] UCLR 378
13. Nakiridde –V- Hotel International [1987] HCB 85
14. United Equipment –V- Uganda Bookshop [1987] HCB 90
15. Ahmed Zirondomu V Mary Kyamulabi [1975] HCB 937
16. Bandali Jaffer versus Sseggane[1972] ULR 108
17. Girado versus Alam [1971] EA 448
18. NIC –V- Mugenyi [1987] HCB 28
19. Sebugulu versus Katunda [1979] HCB 46
TOPIC SIX
PRE – TRIAL AND JUDGEMENT REMEDIES
The Applicable Law, the meaning pre-trial and Judgment remedies, including temporary
injunctions and interim orders, security for costs, attached before judgment, the grounds and
applicable procedure, manner of objection or opposition.
Interlocutory Injunctions, Interim Orders and Preservation of Property

 The Judicature Act (cap 13) S. 14, 33, and 38
 The Civil Procedure Act (Cap .71) s.98
 Civil Procedure Rules (S.1 71-1) Order 41
 The Government Proceedings Act (Cap 77)
 Justice Egonda Ntende: The Demise of the Exparte Temporary Injunction
Interlocutory/ Temporary Injunctions

Applicable Law
2. BAT (U) LTD vs Bamuda Tobacco Co. Ltd HCT - -00-CC-MA- 0599-2005
Nature and essence of a Temporary Injunction
1. Hussein Badda V Iganga District Land Board HCT-00-CV-MA 0479-2011
2. Noah Bukenya Global Credit Management Co. Ltd HCMA No.9/2011
3. Babumba –V- Bunju [1992] III KALR 120
4. BAT (U) LTD vs. Bamuda Tobacco Co. Ltd HCT - -00-CC-MA- 0599-2005
1. Rutiba Shaban vs Lucy Miwanda HCLDCA No. 18/2006
2. In Re Kakoma Saw Mills [ 1974] EA 487
Pendency of a Suit
1. Hussein Badda Vs. Iganga District Land Board & 4others HCT-00-CV-MA 0479/2011
3. Re Theresa Kiddu [1980] HCB 115:
Discretion of Court
1. Alley Route Ltd vs. Uganda Development Bank Ltd HCT -00-cc-MA- 6344/2006
2. Francis Kayanja vs DT B ( U) LTD HCT -00-CC-MA -0300/08
Maintenance of the Status Quo
1. Andrew Babigumira Vs. John Magezi HCMA No. 538/2013
 Commodity Trading Industries Ltd & Anor Versus Uganda Maize Industries Ltd [2001-
2005] HCB 118
2. Francis Kayanja vs Diamond Trust bank of Uganda Ltd HCT-00-CC-MA 0300- 2008
3. Peace Isingoma vs MGS International (U) Ltd HCT -00-CC-MA-0761 – 2006.
4. Godfrey Sekitoleko & 4 OTHERS V Seezi Peter Mutabaazi [2001-2005] HCB 80
5. Jonny Waswa vs Joseph Kakooza 1998 HCB 85
6. Noor Mohamed vs Jammohusein (1953) 29 EACA P
Preservation of Property
1. Uganda Telecom Ltd Vs. Justus Ampaire HCT-00-CS-0599-2003
2. Bob Kanyabujunja Vs. Kakooza [1988-90] HCB 166
Pre-conditions/ Considerations for Grant of a Temporary Injunction
1. M/s Epsilon (U) Ltd Vs. Joseph Kibuyaga HCMA No. 0139/2011
2. Professor Semakula Kiwanuka V Electoral Commission & AG Constitutional Application
No.08/2011
3. Uganda Law Society and Anor vs. Ag constitutional Application No. 7/2003
4. Rubaramira Ruranga vs EC Constitutional App. No 10/06 .
5. Kiyimba Kaggwa V Haji Abdul Katende [1985] HCB 43
6. Uganda Muslim Supreme Council VS. Shiekh Kassim Mulumba [1980] HCB 110
7. Giella –V- Cassman Brown [1973] E.A 358
Existence of a Prima Facie Case
1. Uganda Law Society and Anor vs. Ag constitutional Application No. 7/2003
2. Imelda G. Basudde Nalongo vs Tereza Mwewulizi and Anor – HCMA No. 0402 /2003
3. Agnes Bainomugisha vs DFCU Ltd HCT -00-CC-MA- 0435 /2007
3. Lydia Obonyo Jabwor vs Maurice Bagambe HCMA No . 353 / 2004.
Irreparable Injury/ Damage
1. Florah Rwamarungu V DFCU Leasing Co. Ltd HCT-CC-MA-0436-2007
3. Digitek Advertising Ltd vs Corporate Dimensions Ltd HCT -00-CC-MA-0424 / 2005
4. Francis Kayanja vs DT B ( U) LTD HCT -00-CC-MA -0300/08
5. NITCO VS. Hope Nyakairu [ 1992-93] HCB 135
6. Doreen Kalema –V- NHCC [1987] HCB 73
Balance of Convenience
1. American Cynamid Co. Ltd V VS Ehicon LTD [ 1975] AC 396
3. Rubaramira Ruranga vs EC Constitutional App. No 10/06 .
Temporary Injunction Against Government
1. AG VS. Silver Springs Hotel SCCA NO. 1 OF 1989 ( UNREPORTED
2. Christopher Sebuliba –V- AG S.C.C.A NO. 13 OFF 1992 KALR 64
3. AG Vs. OSOTRACO Limited CA CA No.32/2002
Procedure
BAT (U) LTD vs. Bamuda Tobacco Co. Ltd HCT - -00-CC-MA- 0599-2005
Noah Bukenya V Global Credit Management Co. Ltd HCMA No.09/2009
Notice of Application
1. Doreen Kalema –V- NHCC [1987] HCB 73
Opposing Application
1. Jane Lugolobi V Gerald Segirinya HCMA No. 371/2002
2. Energo Projekt V Brigadier Kasirye Gwanga & Anor. HCMA No.558/2009
Discharge of a Temporary Injunction
1. Afro Uganda Bros. Ltd –V- Mpologoma Bros General Agency (1987) HCB 93
Interim Orders
1. Souna Cosmetics Versus URA HCMA No. 424/2011
2. Hussein Badda Vs. Iganga District Land Board & 4others HCT-00-CV-MA 0479/2011
3. Board of Governors of Kawempe Muslim Sec. School V Hussein Kasekende &Othrs HCMA
637/2006
SECURITY FOR COSTS AND FURTHER SECURITY FOR COSTS

Order 26 CPR, S. 284 Companies Act, 2012
Principles Governing Security for Costs.
1. Deepak K SHAH & OTHS V Manurama Ltd & OTHS HCMA No.361 of 2001
2. Development Finace Corp of Uganda Ltd & Othrs V N.G General Limited HCMA No.
1527/1999
3. John Murray Publishers Ltd Vs. G.W Senkindu & Anor [1997-2001]UCLR 295
4. UNIDROM Ltd VS. Kaweesi & CO. LTD 1992 KALR 123
5. Rohini Danji Sidpra VS. Freny Damji Sidpra AND others SCCA 80 OF 1995 [1995] KALR
22
6. G.M Combined V A.K Detergents SC [1996] 1KALR 51
7. Namboro VS. KAALA 1975 HCB 315
8. Mawogola Farmers & Growers LTD –V- Kayanja [1971] EA 48 (NO.1) (C.A) – 108, (NO.2)
(C.A) 272
9. John Mukasa & Litho Pack Ltd V M/S Srijaya Ltd HCMA No. 215 of 2004
10. Katabarwa V Ntege Ssebagala & Anor. HC EP No. 11 of 1998(1998) KALR 110
11. UDB- v- Muganga Construction [1981] HCB 36
Security for Costs and Further Security for Costs in the Supreme Court
1. Margaret & Joel Kato versus Nulu Nalwoga Civil Applic. No. 11/2011
2. Kakooza Jonathan & Anor V Kasaala Growers Co-op Society SC Application No. 13/2011
3. Goodman Agencies Ltd Vs. Hasa Agencies (K) Ltd Civl Ref No.01/2011SC
4. Bank of Uganda V Joseph Nsereko & 2 Othrs Civil Appl No.7/2002 SC
5. Bank of Uganda Vs. Banco Arabe Espanol SCC Appl No. 20/1999
6. Uganda Commercial Bank V Multi Constructors Ltd SCC Appl No. 29/94
7. Transroad Ltd Vs. Bank of Uganda SCC Appl No 43/1995
8. Lalji V Nathoo Yassamjee (1969) EA 315
9. NoorMohamed V Patel (1960)EA 447
10. Atul Kumar Patel V American Express Banking Corp SCC Appl No. 9/1989
11. GM Combined (U) LTD VS. A.K Detergents ( U) LTD SCCA NO 34 OF 1994 [1996] 1
KALR 51
12. Sir Lindsay Parkinson & CO. LTD VS. Triplan [1973] QB 609
1. Keary Development Ltd V Tarmac Construction Ltd [1995] 3 ALL ER 534
2. Noble Builders (U) LTD & Anor V Jabal Singh (2005) ULSR 123 SC
3. The Official Receiver and Liquidator of Sejpal Ltd VNarandas Nanji [1960] EA 108
Security for Costs and Further Security for Costs in the Court of Appeal
1. Dr. Frank Nabwiso V Electoral Commission EP Application No. 25O of 2011
2. Southern Investments V Mukabura Investments Limited CAMA No.77/2007
3. Ramzanali Mohamedali Meghani V Kibona Enterprises Ltd CACA NO. 27 OF 2003
4. Amrit Goyal V Harichand Goyal & Othrs CAC APPl No. 109 of 2004
5. International Credit Bank (IN LIQUIDATION ) V Tropical Commodities Supplies LTD &
OTHRS CACA No.24 of 2004
Failure to deposit Security for Costs
1. Amrit Goyal V Harichand Goyal& Othrs CACAPP No. 109 of 2004
2. Bank of Uganda –V- Banco Arabe Espanol S.C.C.Appl NO. 20 OF 1998 ARISING OUT OF
S.C.C.A NO. 8 OF1998
Security for Costs in Election Matters

Hajji Abdul NadduliVs. Ronald Ndawula EPA No. CA
See Rule 5 Parliamentary Elections (Election Petition Rules)
See S.58 Parliamentary Elections Act 2005
Other relevant authorities on security for costs
ARREST AND ATTACHMENT BEFORE JUDGMENT 0.36
1. Stanbic Bank (U) Ltd Vs. New Makerere Kobil Station Ltd HCT-00-CC-MA 565-2010
2. Rev Ezra Bikangiso V New Makerere Kobil Station HCT-00-CC-MA-10-2010
3. UEB (in Liquidation) Vs. Royal Van Zanten HCT-00-CC-MA-0251
4. Uganda Telecom V Ltd V Justus Ampaire HCT-00-CV-MA-0599-2003
5. Bob Kanyabujunja V Kakooza [1988-90] HCB 166
6. Pyarali Dakardini vs. Anglo American Amusement Park (1930) 4ULR 28
7. Mugimu vs. Basabosa [1991] ULSLR 191
8. Potgieter vs. St Stumbert [1967] EA 609
9. Henry Kawalya vs. J. Kirnyakwazi [1975] HCB 372
10. Musaka Farmers and Producers Ltd vs. Aloytus Tamale [ 1992-93 ] HCB 203
TOPIC SEVEN
JUDGEMENT ORDERS, DECREES AND COSTS S.27 CPA
1. Mwiru Paul V Hon Igeme Nathan Nabeta CA EPA No.006/2011
2. Mwiru Paul V Hon Igeme Nathan Nabeta Election Petition No.6/2011
3. Departed Asians Property Custodian Board V Jaffer Brothers Ltd SCCA No. 9/1998;
4. Software Distributors (Africa) Limited & Anor. Vs. Kambaho Perez CACA No. 76/2006
5. Col. (Rtd) Dr. Besigye Kiiza V Museveni Yoweri Kaguta & Anor. SC EP No. 0/2001
6. Kadama Mwogezaddembe V Ggawala Wambuzi Election Petition No. 2/2001.
7. Behange Jenniffer V School Outfitters LTD [1997-2001] UCLR
8. Makula International Ltd V Cardinal Nsubuga& ANOR[1982] HCB 11
CONSEQUENCES OF JUDGEMENTS AND RES JUDICATA

S.6 & 7 CPA Cap 71
1. Maniraguha Gashumba versus Sam Nkundiye CACA No. 23/2005
2. Hon. Anifa Bangirana Kawooya vs AG and NCHE, Constitutional Petition No. 42 / 2011.
4. Charles Mayambala V Stanbic Bank Civil Ref No. 69/2008 CA
5. F.W Sembatya V Nandawula and 2 Others CACA NO. 98 OF 2003
6. G.W Wanendeya vs Stanbic Bank (U) Ltd HCT-00-CC-CS-0486-2005
7. Narrotham Bhatia & ANOR, V Boutique Zhazim Ltd HCMA NO. 411 OF 1992
8. Kamunye V Pioneer AssuranceCo Ltd [ 1971] EA 263
9. Saleh Bin Kombo V Administrator General [1957] EA 191
10. Semakula V Magala [1979] HCB 90
11. New Victoria Mines Co. Ltd vs. Presiding Officer Labour Court AIR 1970 A11 20, 214:
12. Lubisha V Wanyonyi [1978] HCB 101
13. Re Rwenzigye [1976] HCB 173
EXECUTION AND STAY OF EXECUTION

Read Article:
1. Enforcing Court Judgments and Court Orders; The role of an Advocate. By Tibaijuka K.
Ateenyi
2. Enforcement of Foreign Judgments In Uganda
CASES
1. Kavuma t/a Kavuma Associates versus AG HCMA No. 417/2012
2. Lab (U) Limited & 2 Others Versus Greenland Bank in Liquidation HCMA No. 490/2010
3. Maria K. Mutesi versus Official Receiver HCMA No.706/2011
4. Jimmy Tumwine V Frank Nkurunziza and Anor HCT-00-CC-CS 479-2002
5. Registered Trustees of Kampala Arch Diocese & Anor. Vs. Harriet Namakula [1997-2001] uclr
385
6. NARSHIDAS M. METHA V BARON VERHEYAN (1956) 2 TLR 600
7. KATO V KANTINTI [1985] HCB 97
8. MEHTA V KARSANDAS PITAMBA & BROS [1958]EA 694
9. OCHOLA V WASSWA & ANOR. [1988-90] HCB 102
10. PATEL V PATEL [1958] EA 743
11. KIU V STEEL ROLLING MILLS LTD & OTHRS HCMA 0509-2006
12. TRANSROAD LTD V BANK OF UGANDA [1996] VI KALR 42
13. ULC V PARK ROYAL HCMA NO. 545 /2004
14. MUNYAGENDA V SINGO WOLFRAM MINES LTD (1955) 7 ULR 144
15. STANDARD BANK OF SA V SENKUBUGE [1960] EA 13
16. MANDAVIA V RATTAN SINGH [1968] EA 146
17. SOHAN LAL V BRITISH EAST AFRICAN PLANTING CO. LTD (1938) 18 KLR
18. PETRO SONKO V PATEL (1953) 20 EACA 99
19. BEATRICE D’ SOUZA VS SACHODINA [964] HCB 117
20. BLASIO BIFABUSHA V TURYAZOOKA CACA 3/2000
21. EMMANUEL BITWIRE V REPUBLIC OF ZAIRE BY ITS EMBASSY IN KAMPALA HCCS
858/1993
22. BROTHER PETER V AG [1980] HCB 101
23. BETTY NAMUGENYI V DAISEN CO & ANOR. HCMA No. 552 of 2005(objector)
24. JOHN VERJEE & ANOR. V SIMON KALENZI ^ OTHRS CACA NO.71 OF 2000(Objector)
25. TRANS AFRICA ASSURANCE CO. LTD V NSSF SCCA NO.1 OF 1999(objector)
26. BEATRICE NAKITYO V RONALD K. NGANGA HCMA NO.713/2003
27. THE CO-OPERATIVE BANK LTD (IN LIQUIDATION) V MUGANWA SAJJABI HCMA
NO. 716/2005
28. Mildred Lwanga vers the Administrator General & Anor. HCCS No. 0086/2002
29. MUGGA ADAM VS RANMAL KESHWLLA HCT MA 0679/2006
30. KISAMBIRA SENTAMU ISMAIL V ECIMA ELIKANA HCMA NO. 337/2006
31. RAJIMPEX VS. NATIONAL TEXTILES BAORD HCCS NO 103 OF 1988
32. SOKEMPEX INTERSTATE CO. V EURAFRO GENERAL IMPORT AND EXPORT CO.LTD
[1981] HCB 73
33. FENEKASI SEMAKULA V JAMES & JAMES & FRED MUSOKE [1981] HCB 46
34. KINYABIKALI & ANOR V AG [1987] HCB 47
35. TRANS AFRICA INSURANCE CO. V NSSF [1999] EA 352 SC
36. EDMOND KAKALE V BENJAMIN WEDALW [1976] HCB 29 HC
37. POSHO MILLS VS KENYA SISAL ESTATE [1962] EA 647
38. RODWAY MOTOS LTD VS. SUNDERJI GOKALDAS [ 1940 ULR 51
39. KATO VS. KANTINTI [1985] HCB 97
40. AZZIZ VS. PAJABO [1977] HCB 36
41. ROBDEAY LE GRAND & CO. VS. MARKS [1918] 1 KB 75
42. PARIOT VS SEMPALA [978] 51
43. FENAKASI SEMAKULA VS. MUSOKE [198] HCB 46
44. SENTAMU VS. UCB [983] HCB 61
45. AG VS. KHATOON [1960] EA 505
46. CHRISTOPHER SEBULIBA V TREASURY OFFICER OF ACCOUNTS CO AG HCMA No.
127 of 1992
47. SHAH V AG No. 2(1970) EA 543
48. PAUL KALULE KAGODO VS. KAROLINA KYAGAZA [1979] HCB 136
49. UCB –V- ZIRITWAWULA
50. MOHAMMED –V- JUSTINE WAMALA AMARA
51. KABANGULE –V- PUMJAB
52. GIKTBY –V- HODCISON
53. SUNDER DAS –V- MUNICIPAL COUNCIL OF NAIROBI
54. ABDUL WALID & SONS –V- MUNSHIRAM
55. RE SIR JOHN BAGAIRE [1995] V KALR 18
TOPIC EIGHT
CORRECTIVE AND POST JUDGMENT REMEDIES
SLIP RULE
1. David Muhenda versus Humphrey Mirembe Civil Applic. No.05/2012 SC
2. Fang Min V Dr. Kaijuka Mutabaazi Civil Application No.06/2009
4. Ahmed Kawooya Kaugu versus Bangu Aggrey Fred Civil Applc. No. 03/2007
5. ORIENT BANK LIMITED V FREDRICK ZABWE AND ANOR SCCAPP NO. 17 /2007
6. NPART V GENERAL PARTS (U) LTD MISC. APPLICATION NO. 8 /2000SC
7. LIVINGSTONE SEWANYANA V MARTIN ALIKER SCCAPP NO. 4 OF 1991 SC
8. LAKHAMISHI BROTHERS LTD R. RAJA & SONS (1966) EA 313
9. ADAM V LIBYAN ARAB BANK SSCA28/1992.
10. KASANDAS V JIVRAJ [1965] EA 700
APPEALS, REVIEW AND REVISION
REVIEW OF DECREES AND ORDERS

REVIEW
1. F.X MUBUUKE V UEB HCMA NO. 98/2005[ meaning of review
2. Margaret Senkuute V Musa Nakirya HCRC No. 7/2009
3. George William Kateregga versus Commissioner Land Registration & Others HCMA No. 347/2013
4. Joyce L. Kusulakweguya V Haida Somani & Anor. HCMA 40/2007
5. Livingstone Sewanyana V Martin Aliker SCCA No. 4/1990
6. John Genda & 53 Othrs V CMB [1997] KALR 15
7. Hassanali V City Motor Accessories Ltd ^ Othrs [1972] EA 423
8. Mohamed Alibhai vs E.E Bukenya Mukasa SCCA No. 56 of 1996 ( unreported)
9. Gordon Sentiba & Othrs V IGG CACA NO. 14/2007
10. Morris Ogwal & Othrs V AG HCMA NO. 456/07
11. National Bank of Kenya V Njau [1995-98]EA 248
12. Touring Cars (K) Ltd V Munkanji [2000] 1EA 260
13. Shiv Construction Co. Ltd vs. Endesha Enterprise HCCS NO. 102
14. Adonia vs. Mutekanga [1970] EA 429
15. In re Nakivubo Chemist (U) Ltd Supra n Yusuf vs. Nokrach [1971] EA
16. Levi Outa vs. UTC [ 1975] HCB 340
17. Henry Munyanganizi vs General Machinery Ltd. HCCS No. 468 of 1983 ( unreported)
18. Kwesigabo, Bamwine & Walubiri Advocates V NYTIL PICFARE[1998] I KALR 43
19. Busoga Growers Co-operative Union Ltd V Nsamba & Sons Ltd HCMA No. 123 of 2000
20. Engineer Yorokamu Katwiremu V Elijah Mushemeza 7 othrs [1997] II KALR 66
21. Nakagwa V Dominico Kiggundu (1978) HCB 310
22. Baguma vs. Kadoma [1979] HCB 340
23. Buladina Nankya vs. Bulasio Konde [1979] HCB 239
24. Abdulla Jaffer Davji vs. Ali RMS Devji [1958] EA 127
25. Erimiya Serunkuma vs. Elizabeth Nandyose [1959] EA 127
26. Ladak A M Hussein vs . Griffiths Isingoma Kakiiza SCCA No. 8 of 1995 ( unreported)
27. Bagumirabingi JOHN V HOIMA T/C HCMA No. 826 of 2004
28. Pro Kabinenda vs. Sterling Astaldi (U) Ltd Suit No. 369 of 1968 (unreported)
29. RE Nakivubo Chemists [1961] EA 60
30. Yusuf V Nokrach (1971) EA 104
31. Matemba vs. Yamulinga [1963] EA 643
32. Sandar Mohamed vs. Charan Singh [1959] EA
33. Hassam Karim & Co. Ltd vs. African Import & Export Central Corporation Ltd. [1960] EA 396
34. Engineer Yorokamu Katwiremu V Elijah Mushemeza [1997-2001] UCLR 66[R]
35. Busoga Growers Co-operative Union Ltd V Nsamba & Sons Ltd [1997-2001] UCLR 218 R
REVISION OF JUDGEMENTS /DECISIONS
1. Paskal Juma Wasike versus Alex Onyango HCMA No. 04/2010
2. Munobwa Mohamed V Uganda Muslim Supreme Council Revision No. 1 of 2006
3. Karia vs. Wambura [ 961] EA91
4. Muhinga Mukono vs. Rushwa Native Farmer Co-op Soc. Ltd [1959 ] EA 595
5. Kabwengure vs. Charles Kanjabi [1977] HCB 89
6. Juma vs. Nyeko [1992] KALR 78
7. Mubiru vs. Kayiwa [1988-90]
8. Mwatsahu vs. Maro [1967]EA 42
9. Byanyima Winnie vs Ngoma Ngime HC Civil Revision 0009 of 2001 at Mbarara
(unreported)
10. Kahuratuka vs. Mushorishori & Co. [1975] HCB 13
11. LDC vs. Edward Mugalu [1990-91] 1KARL 103
12. Gulu Municipal Council V Nyeko & Othrs HCMA No.5/1997
13. Eriazali V Dodovico [1973] 1 ULR 134
14. Kabwengure V Charles Kanjabi (1977) HCB 89
15. Nangunga Livestock Co-operative Society Ltd V Energo Projekt HCCS No.207 of 1993
16. Muhinga Mukono v Rushwa Native Farmers Co-op Society Ltd [1959] EA595
17. Mubiru v Kayiwa [1975] HCB
18. SGS Societe Generale De Surveillance SA V VIP Engineering & Marketing Ltd [2002]
1EA 264
19. Kitandwako V Biraro [1977] HCB 70
20. Ado Tayebwa V Eldard Bagonzya [1992-93] HCB 143
21. Obadi Entrprises Ltd V URA & Anor. HCCS No. 938/1993
APPEALS [GENERAL PRINCIPLES AND POWERS OF 1ST 2ND AND 3RD APPELLATE
COURTS
1. F.X MUBUUKE V UEB HCMA NO. 98/2005[ meaning of an appeal
2. KEMISA SENYA V JANMOHAMMED JAFFAR Ltd SCCA No. 6/1997[time for
commencing an appeal]
3. STANBI BANK (U) Ltd V ATYABA AGENCIES SCCA NO.2/1995[Parties to an appeal]
4. Baku Rafael & Anor. V AG Const. Appeal No. 1/2008
5. Pius Niwagaba V LDC CACA No. 18/2005
6. MARIA NALIKKA MPINGA & OTHRS V ERNEST SENSALIRE &OTHRS CACA NO.
10/2001
7. Uganda Breweries V Uganda Railways Corp SCCA No. 6 of 2001
8. Robert Coussens V AG SSCA No.8 of 1999
9. Francis Sembuya V Allports Services (U) Ltd SCCA No.6/1999[fresh evidence
APPEALS IN LOCAL COUNCIL COURTS [INCLUDING INTERLOCUTORY
APPLICATIONS
1) Jenniffer Kyomuhendo V Teddy Twinomugisha HCRO.NO. 1/1994[appeals from LC Courts
2) FIDA BIRABWA V SULEIMAN TIGAWALANA HCCA NO.2/1992[appellate jurisdiction
of LC Courts
APPEALS IN MAGISTRATES COURTS AND FROM MAGISTRATE’S COURTS TO HIGH

INCLUDING INTERLOCUTORY APPLICATIONS
1. Agastafa Kiganira versus Kagenda Haruna HCC Appeal No.046/2011
2. Sekyali versus Kyakwambala Civil Appeal No.07/2010
3. William Kisembo & Anor. Versus Kiiza Rwakaikara HC Civil Appeal No.07/2013
4. Authur Tindimwebwa VersusMuhereza & Anor. Civil Appeal No.55/2010
5. Tight Security Ltd Versus Chartis Uganda Insurance Co. HCCA No. 14/2014
6. Nabudde Versus Kikumi HCCA No. 0072/2013
7. Tumuhairwe Versus Electoral Commission HC EPA No. 02/2011
8. Sarah Kintu Versus Jombwe Sebaduka Red HCCA No. 025/2011
9. Eleko Balume Versus Goodman Agencies Limited HCMA No. 12/2012
10. Buso Foundation Limited versus Maate Bob Phillips CA No.0040/2009
11. Orient Bank Limited Versus AVI enterprises Limited HCCA No. 002/2013
12. Y. GUMISIRIZA V HAJJI MOHAMMED KAJUNJURE HCCA NO.5/1994[appeals from
MC to HC
13. EDURIA KEMIGYENDE V JOVIA KABUKANGWA HCT CA No.2/1997[appeals from
MC to HC
14. NAWEMBA SULAIMAN V BYEKWASO MAGENDA [1989] HCB 140[ procedure of
appealing to HC
15. GODFREY TUWANGYE KAZZORA V GEORGINA KITARIKWENDA [1992-93] HCB
145.
1. Robert Biiso V May Tibamwenda [1991] HCB 92 [appeal to H,C]
2. Haji Mohammed Nyanzi V Ali Segne [1992-1993] HCB 218[Appeal to H.C
3. Re William Naikabona [1976] HCB 242[ App to H.C with leave
16. James Bunwa V Bayeshymbaho [1976] HCB 236[Leave
17. ABAHO TUMUSHABE V STANLEY BEINEABABAO [1996] III KALR 5
18. NTEGE MAYAMBALA V CHRISTOPHER MWANJE HC MISC APPL. 72/1991
19. BITARABEHO V DR. EDWARD KAKONGE [1997] HCB 55 CA
APPEALS FROM ORDERS OF REGISTRARS TO THE HIGH COURT
APPEALS FROM ORDERS OF REGISTRARS TO THE HIGH COURT

1. Jackson Kikayira versus Rosemary Nalubega Civil Ref. Appeal no. 404/2014
2. Bonney Mwebesa Katatumba versus Shumuk Springs Development Ltd & Anor. HC Civil
Ref. No. 0327/2014
APPEALS FROM ORDERS & DECREES OF THE HIGH COURT TO COURT OF APPEAL
INCLUDING INTERLOCUTORY APPLICATIONS
1. Gaba Beach Hotel LTD V Cairo International Bank LTD CA Civil Appl. No 34/2003
[Notice of appeal]
2. Mohammed v Roko Construction Ltd. S.C.C.A No 1/2013, pages 6-8.
3. Mwiru Paul Versus Hon Igeme Nathan Nabeta EPA No.6/2011 CA
4. Dr. Ahmed Muhammed Kisuule V Greenland Bank in Liquidation Civil Application
No.10/2010
5. UNEB V Mparo General Contractors Ltd CAC Ref No.99 of 2003
6. Narrotham Bhatia & ANOR. V Boutique Shazim Ltd CACApp No. 64/2008[ effect of order
of extension of time
7. Dr. Frank Nabwiso V Electoral Commission EP Application No. 25O of 2011[filing record of
appeal and payment of fees and security for costs
8. Wanume David Kitamirike V URA Civil Appl No.138/2010 CA [certificate of registrar/ time
for lodging appeal
9. NHCC Ltd Vs. Kyomukama Civil Appl No. 133/2009 CA [letter for proceedings
10. Moses Ingura Vs. Othrs V LDC HCMA No.133 of 2005
11. LDC V Pius Niwagaba & Others CACApp No.89 of 2006
12. The Most Rev Nkoyoyo V Ziraguma Emanuel & 2 Othrs CACA No.7 of 2004[grounds of
appeal
13. Uganda Railways Corp V Ekwaru D.O & 5104 Othrs CACA No.185 of 2007
14. Jaspal Singh Sandhu V Noble Builders & Anor. SCCA No. 13 of 2002
15. Monday Eliab V AG Civil Appeal No. 16/2010
16. URA Vs. Uganda Consolidated Properties Ltd CA No. 31/2000 CA
17. Kampala City Council Vs. National Pharmacy Ltd (1979) HCB 215
18. Hon. Rose Akol Okullo & Anor. V Among Annet Anita EP Appl No.35/2007
19. Mandela Auto Spares V Marketing Information Systems Ltd CACA REF NO.
74/2008[ interim order of stay] Reference to single judge
20. Software Distributors (AFRICA) LTD & Anor. Kambaho Perez CACA No.
76/2006[ interference with discretion)
21. Henry Kasamba V Yakobo Rutaremwe CACA No. 05/2008[ no decree and leave in 2nd
appeals to CA
22. LAWRENCE MUSITWA KYAZZE V EUNICE BUSINGYE SCCApp No. 18/1990[ stay
pending appeal]
23. UNEB V Mparo General Contractors Ltd SCCA NO.19 OF 2004 [time]
24. UTEX Industries LTD V AG SCCA 52 /1995
25. Muwulize Norman V Anthony Kanyike CAC Ref. No. 07/2007[ fresh Evidence in CA]
26. DFCU BANK LTD V DR. ANN PERSIS NAKATE LUSEJJERE CA CIVIL APL. NO.
29/202
27. Francis Sembuya V Allports Services (U) Ltd SCCA No.6/1999[fresh evidence
28. Navichandra Kakubhai Radia V Kakubhai Khalidas & Co. Ltd SCCA No. 10/94 [ fresh
evidence on appeal only with leave
29. Alley Route V UDB HCT CCMA No.0634/2006[ leave to appeal]
30. Sango Bay Estates Ltd & Othrs V Dresdenor Bank AG (1972) EA 17
31. Degeya Trading Stores (U) Ltd V URA CACApp No.16 of 1996
32. The Commissioner General of URA V Meera Investments Ltd HCMApp No.359 of 2006
33. Board of Governors of Gulu S.S .S V Phinson E. Odongo & Anor. [191] HCB 85 [fresh
evidence on appeal]
APPEALS FROM COURT OF APPEAL TO SUPREME COURT INCLUDING
INTERLOCUTORY APPLICATIONS
1. Kabale Housing Estate Tenants Association Ltd Versus Kabale Municipal Local Government
Council CAC Appln No. 15/2013
2. UNEB V Mparo Gen. Contractors SCCA No. 8.1991
3. GODFREY MAGEZI AND BRIAN MBAZRA V SUDHIR RUPARELA SCCA NO. 6 OF
2003 [extension of time]
4. Kasaala Growers Co-op. Society V Jonathan Kalemera and Anor SCC Application
No.19/2010
5. Kasaala Growers Co-op. Society V Jonathan Kalemera and Anor SCC Application
No.24/2010
6. .B Chemical and Pharmaceutical Industries Ltd Vs. Glaxo Group Ltd SCCA No.18/2004
[ROA
7. Mulowooza & Bros Vs. N. Shah & Co. Ltd SCC Application No.20/2010
8. Barclays Bank of Uganda V Eddy Rodrigues [1987] HCB 36 [ROA
9. TIBEBAGA V Fr. NARSENSIO BEGUMISA & OTHRS SCCA NO. 18/2002[extension of
time
10. J.W KAZOORA V MLS RUKUBA SCCA NO. 4 /1991
11. AG & ULC V CHARLES MARK KAMOGA SCCA No.8 of 2004
12. BEATRICE KOBUSINGYE V PHIONA NYAKANA SCCA 5/2004;[appeals to the
supreme court]
13. AG V APKM LUTAAYA SCC. APP NO. 12 OF 2007[extension of time
14. ORIENT BANK V F. JK ZAABWE SCCA NO.19/2007 [interim stay.
15. Hon. William Oketcho V George Owor SC Constitutional Appl No. 02/2011
16. AG & ULC V JAMES MARK KAMOGA & ANOR SCCA No. 8/2004
17. Molly Kyalukinda Turinawe and Others V Eng. Ephraim Turinawe Civil Application No.
27/2010[ time]
18. Flora Rwamarungu Vs. DFCU Leasing Co. Ltd Civil Application No. 11/2009 [interim
order]
19. Akright Projecks Limited V Executive Property Holdings Ltd SCCA No. 03/2011 [stay]
20. JOYCE MAGUTA V IDAH ITERUHA SCCAPP No. 09/2006[ stay
21. G. AFARO V Uganda Breweries Ltd SCCAPP No. 12 /2008 [interim stay
22. Sitenda Sebalu V Sam K. Njuba EPA No. 26 of 2007 SC [ Record of appeal and extension of
time
23. The executrix of of the estate of the late Chrstine Mary Namatovu Tiaijukira & Anor. V Noel
Grace Shalita Stanaz [1992-1993] HCB 85[extension of time]
24. Godfrey Magezi & Anr. V Sudhir Rupaleria SCCAPP No. 10 of 2002
Other relevant cases on appeals
1. GM COMBINED V A K DETERGENTS HCCS 384/1994
2. STANDARD PRINTERS AND STATIONERS LTD V CACA 40/2000
3. DR. RUBINGA V YAKOBO KATO AND 2 ORS SC CA 35 /1992
4. BITARABEHO V DR. EDWARD KAKONGE [1997] HCB 55 CA
5. PETER MULIIRA V MITCHELL COTTS CACA No.15 of 2002
6. NTEGE MAYAMBALA V CHRISTOPHER MWANJE HC MISC APPL. 72/1991
7. DR. RUBINGA V YAKOBO KATO AND 2 ORS SC CA 35 /1992
8. LAWRENCE MUSITWA KYAZZE V BUSINGYE SCCA No.18/1990
9. HANNINGTON WASSWA & ANOTHER VS. MARIA OCHOLA AND OTHERS
SUPREME COURT MISC. APPLICATION NO. 12 OF 1988
10. THE EXECUTRIX OF THE ESTATE OF THE LATE CHRISTINE NAMATOVU
TEBAJJUKIRA AND ANOTHER VS. NOEL GRACE SHALITA STANANZI
[1992-1993] HCB 85;
11. FRANCIS NYANSIO MICAH V NUWA WALAKIRA SCCA No. 24/94]NOA
12. Barclays Bank of Uganda V Eddy Rodrigues SCCA No. 5 of 87
13. Impressor Fortunato Federick V Irene Nabwire SCCA No. 3 of 2000[cross appeal]
14. Kengrow Industries V Chandan SCCA No.7 of 2001
15. MAKULE INTERNATIONAL V HE CARDINAL NSUBUGA WAMALA &
ANOR [ 1982] HCB 11
16. G.M Combined (U) ltd vs. A.K Detergents ( U) Ltd. Civil Application 0.23 of 1994
(unreported) [fresh evidence
17. Mbogo and Others vs. Shah [ 1968] EA 93[ discretion
18. Patrick Makumbi V & Nakibuuka Enterprises V Solle Elecronics (U) Ltd CACA No.
11/194
19. J. Hannington Wasswa vs. M. Onyango Ocholo [1992-93] HCB 103 ( SC).
20. Shiv Construction Co. Ltd vs. Endesha Enterprise Application SCCA Appl. No.
15/92 ( Unreported)
21. Plaxenda Sembatya vs. Tropical African Bank SCCA No. 6 of 1987 (unreported)
22. Jaspal Singh Sandhu V Noble Builders (U) Ltd SCCA No. 13/2002
23. Dharansy Mararji and Sons Ltd. Vs. S.N Kara SCCA No. 27 of 1996 (unreported)
24. Narritham Bhatia & Anor. V Boutique Shazim Ltd CACApp No.31 of 2007
25. KCC V National Pharmacy Ltd [1979] HCB 216 [ Institution of appeal]
TOPIC NINE JUDICIAL REVIEW PROCEDURE

1. Picfare Industries Ltd v s AG & Ors HCMC NO. 258 of 2013
2. Re application by Mustapha Ramathan for orders of certiorari, Prohibition and Injunction,
Civil Appeal No. 25 of 1996
3. Pius Niwagaba Versus Law Development Centre Miscellaneous Caus No. 125 of 2005,
4. Micro Care Ltd vs Uganda Insurance Commission HCMA No. 31/2009.
5. UTODA vs KCCA & Anor HCMA no. 137 / 2011.
6. Lex Uganda Advocates & Solicitors Versus Attorney General Miscellaneous Application No.
322 of 2008
7. Muwanguzi vs URC HCCMC 003 of 2012
8. .Benon Biryahwaho & ors vs the PS ministry of Health & 2 ors .
9. Kule Joseph Andrew and ors v sag HCMC No. 106 / 2010
10. Charles Sensonga Muwanga V Budesian Kyabangi Bamwera HCMC No.131/2010
11. Aggrey Bwire V AG &Anor. CA No. 09/2009 CA
12. Hon Justice Okumu Wengi versus AG HCMA No.233/2006
13. HAJI ERISA MAYANJA NJUKI V EC EPA No.02 of 2002
14. JOHN JET MWEBAZE V MUK & OTHRS HCCA No. 78/2005
TOPIC 10: CONSTITUTIONAL LITIGATION

1. George Awor Vs Attorney General Constitutional Application No. 38 of 2010
2. Ismail Serugo Versus KCC & Another Supreme court Constitutional Appeal No. 2 of 1998
3. Hon. Ltd (Rtd) Saleh M.W Kamba & Others Vs. AG and Others Constitutional Applications
No. 14 and 23 of 2013
4. Attorney General Versus Tinyefuza Constitutional Appeal No. 1 of 1997
5. Anifa Kawooya Versus Attorney General & Another Constitutional Petition No. 42 of 2010.
6. Baku Raphael Obudra Versus Attorney General Constitutional Petition No. 1 of 2003
7. Sarapio Rukundo Versus Attorney General Constitutional Petition No.3 of 1997
8. The Uganda Law Society & Anor. Versus Attorney General Constitutional Petition No. 2 of
2002
9. Paul Ssemwogerere & Another Versus Attorney General Constitutional Appeal No. 1 of
2000
10. Katheleen Byrne v Ireland And The Attorney General (1972)J.R
11. R0/133 Maj. Gen. James Kazini and The Attorney General Constitutional Court
Application No.4 of 2008
12. Tusingwire Versus Attorney General Constitutional Application No. 06 of 2013
13. Al Hajji Nasser Ntege Sebaggala v Attorney General and Others (Constitutional Petition No.
1 of 1999),
14. Karugaba v Attorney General – Constitutional Appeal No. 1 OF 2004 [2006]
15. Uganda Projects Implementation and Management Centre Vs. URA Constitutional Petition
No. 18/07 (Reference)
16. Attorney General Versus George Owor Constitutional Appeal No. 01 of 2011
17. Baku Raphael Obudra and Obiga Kania v The Attorney General (Constitutional Appeal No.1
of 2003) [2003]
18. Saverino Twinobusingye Versus Attorney General Constitutional Petition No. 47 of
2011,
19. George Awor Vs Attorney General & Another Constitutional Petition No. 038 of 2010,
20. Kyamanywa Simon vs. Uganda Supreme Court Appeal No. 1166 of 1999 (unreported)
21. Joseph Ekemu & David Kadidi Kamwada vs. Uganda Constitutional Reference No. 1 of
2000 (unreported)
22. Arutu John vs. Attorney General Constitutional petition No. 4 of 1997 (unreported)
23. Charles Onyango Obbo vs. Attorney General constitutional petition No. 15 of 1997
(unreported)
24. Uganda Journalist safety Committee vs. Attorney General Constitutional Petition No. 6 of
1997 (unreported)
TOPIC 11: The Law, Procedure and Practice in Election Petition
1. Bakaluba Peter Mukasa vs Nambooze Betty Bakireke EPA No. 4/2009 Supreme Court of
Uganda.
2. Mukasa Anthony Harris vs Dr. Bayiga Michael Philip Lulume EPA No. 18/2007
3. Mbayo Jacob Robert Vs. Electoral Commission EPA NO. 07/06.
4. Mwiru Paul Vs. Hon Igeme Nathan Nabeta EPA No.06/2011
5. Abdul Bangirana Nakendo Vs. Patrick Mwondha SC EPA No.09/2007;
6. Iddi Kisiki Lubyayi v Sewankambo Musa Kamulegeya EPA No.8/2006 CA;
3. Ahmed Kawooya Kaugu vs. Bangu Aggrey Fred Election Petition Appeals Nos.5/2006 &
9/2006.
TOPIC 12 Procedure, Practice & Proceedings at the East African Court of Justice
1. Anita Among Versus AG of Uganda and Others Ref. No. 6/2012 (EACJ)
2. Abdul Katuntu Versus AG of Uganda and Others Ref. No. 5/2012 (EACJ)
3. Rev Christopher Mtikila Vs AG ( HCCS NO. 5 / 1993
4. AG of Tanzania Vs African Network for Animal Welfare Appeal No. 3 of 2011
5. Calist Mwatela & 2 others Versus EAC Application No. 1 /2005
6. Democratic Party & Mukasa Mbidde Versus The Secretary General of the East African
Community and the Attorney General of the Republic of Uganda Reference No. 6 of 2011,
7. Modern Holdings (EA) Limited Versus Kenya Ports Authority Reference No. 1 of 2008
8. Katabazi and Others Versus The Attorney General of the Republic of Uganda and Secretary
General of the East African Community Reference No. 1/2007 ;
9. Prof. Anyang’ Nyongo & Others –vs- The Attorney General of the Republic of Kenya &
Others Ref. No.1/2006
10. East African Law Society and 3 Others Versus the Attorney General of the Republic of Kenya
and 3 Others Reference No. 3 of 2007
Topic 1 –Summary procedure
SUMMARY PROCEDURE-O.36 CPR
Scope of Application of Order 36

According to Order 36 r 1 CPR the order applies to the High Court and magistrates Courts. However
although the rule provides for magistrates courts, the Order does not apply to magistrate grade II and
III. This is because they have their rules under the Magistrates Courts Act Cap. 16.
In the case of Nakabago Co-op Society vs. Livingstone Kyanga H.C.C.S. 4/1991 Court held that
the civil procedure rules which provides for summary suits are inapplicable in courts presided over by
Magistrates Grade 2 and 3. The applicable rules are set out in the schedule 3 of the Magistrates
Courts Act. That the entire proceedings were a nullity and the property attached was to be restored to
the rightful owner pending the outcome of the properly filed suit.
The order may be invoked by the government as the plaintiff (Attorney General) but no suit can be
commenced against the Attorney General by way of summary suit. Rule 17(2) of the Government
proceedings (Civil Procedure) rules SI 77-1 bars a summary suit against the government but allows
government to commence one against any other person.
It therefore follows that whereas a default judgment may be obtained against the government under
the provisions of O.9 r 6 CPR no such judgment can be obtained against the Attorney General under
O.36 CPR.
The Rationale for Summary Procedure

Summary procedure 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 necessary kept from what is
due to him by delaying tactics of the defendant. Trial, as a rule, must precede judgment. Under
summary procedure, instead of trial first and then judgment, there is judgment at once and never a
trial.
In the Supreme Court case of Post Bank (U) Ltd vs. Ssozi SCCA No. 8/2015 Tumwesigye JSC held
that O. 36 was enacted to facilitate expeditious disposal of cases involving debts and contracts of a
commercial nature to prevent defendants from presenting frivolous and vexatious defenses in order to
unreasonably prolong litigation. That apart from assisting the courts in disposing of cases
expeditiously, O.36 also helps the economy by removing un necessary obstructions in financial or
commercial dealings.
In the case of Zola & Anor vs. Ralli Brothers & Anor [1969] EA 690 the Court of Appeal held that
Order 33 (now 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 kept from what is due to
him by the 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.
In the case of Isse Shekhnor Roble & Anor vs. M.M.M Agro Dealers Ltd HCMA No. 514/2014
Justice Madrama stated that the purpose of O.36 which enables summary suits is expounded by
Parker LJ in the case of Home and Overseas insurance Co Ltd vs. Mentor Insurance Co (UK) Ltd inn
Liquidation [1989] 3 ALLER 74 at page 77 that the purpose of Order 14 is to enable a plaintiff to
obtain a quick judgment where there is plainly no defense to the claim.
Nature of claims for which Summary Procedure is Suitable
Under O.36 r 2 summary procedure is applicable in the following two circumstances;
a) where the plaintiff seeks only to recover a debt or liquidated demand in money payable by
the defendant, with or without interest e.g. upon a contract, expressed or implied, bonds,
guarantees, trusts and debts for income tax.
b) being actions for the recovery of land, with or without a claim for rent or mesne profits, by
a landlord against a tenant whose term has expired or has been duly determined by notice
to quit, or has become liable to forfeiture for nonpayment of rent, or against persons
claiming under the tenant.
i. where the plaintiff seeks only to recover a debt or liquidated demand in money payable
by the defendant, with or without interest e.g. upon a contract, expressed or implied,
bonds, guarantees, trusts and debts for income tax.
that there is no doubt that O.36 r2 restricts suits to claims based only on contract or land as spelt out
in rule 2. Therefore, any claim based on a different cause of action would have to be brought by way
of an ordinary suit and not under O.36. That in this case, the learned judge was right to entertain the
plaint under summary procedure because the pleadings of fraud in the plaint was not essential to the
claim. The claim is based on contract executed between the appellant and the 1st and 2nd respondent as
agent of the respondent. It is for a liquidated demand of money.
What is a liquidated demand

It is trite law that summary procedure should be resorted to in clear and straight forward cases
where the demand is liquidated.
In the case of Twentsche Overseas Trading Co. Ltd vs. Bombay Garage [1958] EA 741 it was
held that it is trite law that summary procedure should only be resorted to in clear and straight
forward cases where the demand is liquidated and where there are no points for the court to try.
In the case of Simon Yiga vs. Fina Bank HCMA No. 58 of 2012 the issue was whether the suit was
proper in the circumstances to proceed with by way of summary procedure when the rules and case
law authority state that the amount must be liquidated. Justice Hellen Obura (as by then) stated as
follows;
Black’s Law Dictionary 8th Edition defines liquidated amount as ‘‘a figure readily
computed, based on an agreement’s term’’. It is stated in ‘‘The Annual Practice’’
1966, Sweet & Maxwell, London that a liquidated demand is in nature of a debt, a
specific money due and payable under or by virtue of a contract which is either
already ascertained or capable of being ascertained as a mere matter of arithmetic.
It is also stated in ‘‘The Supreme Court Practice’’ 1966, Sweet & Maxwell, London
that;
‘‘…if ascertainment of a sum of money even though it be specified or named as a
definite figure, requires investigation beyond mere calculations, then the sum is not
a debt or liquidated demand but constitutes damages’’.
It was held in that case the circumstances of the case where the agreed interest rate was a much lower
rate offered for the staff, once that rate was changed unilaterally by the respondent, the amount due
and payable cannot be ascertained by mere calculation but require more investigation into the interest
rate applied. See E.M Cornwell & Co. Ltd vs Shangtaguari Dahyabhai Desaib (1941) 6 ULR 103 and
Haji Arjabu Kasule vs. F.T. Kawesa [1957] EA 611 where it was held that interest cannot be claimed
in a suit under Order 33 (now 36) unless it is based on an agreement for interest in the document sued
on, or on a statute. That the document sued on in this case provides for interest of 9% but what is
claimed is based on other interest that was subsequently charged by the respondent without the
applicant’s consent.
In the case of Among vs. Ndagiro HCMA 972 OF 2013 Court adopted the Black’s Law Dictionary
8th Edition defines liquidated amount as ‘‘a figure readily computed, based on an agreement’s term’’
Legal effect and procedure where claim is both liquidated & liquidated
Court proceeds in a summary manner with respect to the liquidated claims of a plaintiff, while
leaving the ordinary procedure to apply to the un liquidated claim.
In the case of Hanani Moezali vs. Moez Ramani HCCS No. 416/2001 the issue was whether and
how a summary suit that includes both a liquidated claim and un liquidated claim may proceed.
Justice Ogoola held that the better course is to judiciously apply the principle of severability as
established in the Dela Pasture case. That the amount of rent claimed should be proceeded under
summary procedure, while the un liquidated amount of interest could be proceeded under ordinary
nature. That in so doing court is wholly cognizant of the fact that once a defendant is given leave to
file a defense in a summary suit, the suit thereupon is ipso facto, transformed into an ordinary suit
anyway. In other wards summary procedure is valid only as long as the defendant is denied leave to
file a defense to the suit.
In the case of Pan Afric Commodities Ltd vs. Sam Bisase & Co. UCC M/A 508 of 2005 Egonda
Ntende, J entered judgment for part of the sum claimed in the plaint and granted leave to file a
defense in respect of a sum of shs. 3m which was not a liquidated amount and had to be proved by
evidence. (See also Gupta vs. Continental Builders Ltd [1978] KLR 83)
ii. being actions for the recovery of land, with or without a claim for rent or mesne profits,
by a landlord against a tenant whose term has expired or has been duly determined by
notice to quit, or has become liable to forfeiture for nonpayment of rent, or against
persons claiming under the tenant.
In the case of Muluku Interglobal Trade Agency Ltd vs. Bank of Uganda [1985] H.C.B 65
Odoki J (as by then) held that Order 33 (now 36) rule 2 CPR clearly envisages actions for
recovery of land, rent or mesne profits where the relationship of landlord and tenant exists or had
existed. That there would therefore be no dispute to the title of the landlord or the amount of rent
payable. In these circumstances summary procedure would provide an ideal quick remedy to the
landlord to recover possession of the property or rent due.
In the case of Busingye & Co. Ltd vs. Muye MA No. 87/2011 Tuhaise J held that summary
procedure under O.36 r 2 CPR clearly envisages actions for recovery of land, rent or mesne
profits. The wording of the rule is clear. The action can be ‘for recovery of land, with or without
claim for rent or mesne profits’. That this infers that the claim for recovery of land can stand on
its own under summary procedure. In view of the wording of the rules, a claim for recovery of
land alone can be instituted by way of summary procedure under O.36 r 2 CPR. It provides an
ideal quick remedy to the landlord to recover possession of the property or rent due.
Summary procedure is instituted by presenting a plaint in the form prescribed endorsed ‘Summary
Procedure Order XXXVI’ and accompanied by an affidavit made by the plaintiff, or by any other
person who can swear positively to the facts, verifying the cause of action, and the amount
claimed, if any, and stating that in his or her belief there is no defense to the suit-O.36 r 2 CPR.
Default Judgment under O.36

Under O.36 r 3 CPR Court shall cause to be served upon the defendant summons. The general
rule is that the defendant does not appear and defend the suit except when applying for and
obtaining leave from the court.
In default of the application by the defendant or by any of the defendants (if more than one)
within the period fixed by the summons served upon him or her, the plaintiff shall be entitled to a
decree for an amount not exceeding the sum claimed in the plaint, together with interest, if any, or
for the recovery of the land (with or without mesne profits) as the case may be, and costs against
the defendant or such of the defendants as have failed to apply for leave to appear and defend the
suit.
that if the defendant fails to apply for leave to appear and defend in time prescribed (which is 10
days), the plaintiff is entitled to a decree for an amount claimed in the plaint with interest, if any.
(O.36 r 3(2). That in the instant case, the defendant failed to apply for leave to appear and defend the
suit, therefore, the appellant was entitled to a default judgment and a decree for the amount claimed in
the plaint with interest claimed.
Note:-
 The claim set out in the specially endorsed plaint must be liquidated in nature and one that
falls within the claims set out in O.36 r 2 CPR.
 Summons must have been served and issued on the defendant(s) in the manner provided in
the rules and there must be evidence of service-O.5 r 16 CPR
 The 10 days within which the defendant is supposed to apply for leave to appear and defend
must have lapsed without the defendant filing such an application or any seeking extension of
time. Edison Kanyabwera V Pastori Tumwebaze SCCA No.6 of 2005
 The plaintiff must formally move court by way of a letter addressed either to the registrar, if
the matter is in the high court or the trial magistrate in case of the magistrate court. NB; look
at the Practice Direction No. 1/2002 Judicial Powers of the Registrars.
Applications for Leave to Appear and Defend

j) Procedure of Application
Under O.36 r 3(1) CPR a defendant served with the summons shall not appear and defend the suit
except upon applying for and obtaining leave from the court. O.36 r 4 requires an application for
leave to appear and defend the suit to be supported by affidavit, which shall state whether the defence
alleged goes to the whole or to part only, and if so, to what part of the plaintiff’s claim, and the court
also may allow the defendant making the application to be examined on oath.
In the case of Francis Wazarwahi Bwengye vs. Haki. W. Bonera HCCA 33/2009 Justice
Yorokamu Bamwine stated that all applications to court, except where otherwise expressly provided
for under the civil procedure rules, are by motion to be heard in open court. O.52 r. 1 of the CPR is
very clear on this. Secondly, applications for leave to defend are provided for under O.36 r 4 CPR.
That the appellant’s application was preferred under O.41 r 1,(2) which governs applications for
temporary injunctions. Clearly therefore the application was defective on account of being preferred
under a wrong law. That since Order 36 does not provide for the mode of preferring the application,
then under O.52 it should have been by Notice of Motion.
In the case of Ready Agro Suppliers Ltd and Others vs. Uganda Development Bank Ltd HCMA
0379/2005 Justice Egonda Ntende held that O.33 (now 36) r 4 sets out what applicants must do, if
they seek leave to appear and defend. That he / she must state by affidavit whether the defense
alleged goes to the whole or to part only of the plaintiff’s claim, and if only part, which of the
plaintiff’s claim. The response must be specific and not general or evasive, so as to leave no one in
doubt, as to the extent of the plaintiff’s claim that the defendant genuinely disputes.
k) Time for Filing the Application
O.36 r 3(2) CPR the defendant is required within the period fixed by the summons to make an
application for leave to defend the suit. Form 4 of Appendix A of these Rules require the
defendant to apply for leave from the court to appear and defend the suit within ten days from the
service of this summons.
In the case of Uganda Telecom Ltd vs. Airtel Uganda Ltd HCMA 30 of 2011 Justice Hellen
Obura considered the provisions of Order 36 rule 3(1) and (2) of the CPR and the relevant extract
from Form 4 of Appendix A requiring the defendant within ten days from service of the summons
to apply for leave from the court to appear and defend the suit and held that 10 days prescribed in
the summons in summary suit on plaint is not a practice of court in summary suits so that it is
handled expeditiously. That appendices to the rules are made by the Rules Committee as part and
parcel of the Rules and are meant to be read together with the rules. That Form 4 in Appendix A
adds what is lacking in rule 3(1) of Order 36 of the CPR and therefore that rule must be read
together with it to be complete. Consequently, for all intents and purposes the time prescribed in
Form 4, is time appointed or allowed by the rules to which Order 51 r 4 applies.
In the case of Republic Motors Ltd vs. Atlantic Recreation (1982) HCB 104 Justice Manyindo
held that a defendant who wishes to appear and defend a summary suit must seek leave of court
within 10 days of receiving the summons in a summary suit. Court further noted that time is of
essence. Therefore an application made three days outside the prescribed 10 days was time barred.
l) Applications filed out of time, Consequences and remedy

Section 96 of the Civil Procedure Act provides for enlargement of time.
In the case of Twentsche Co. Ltd vs. Bombay (1958) EA 741, the issue was whether court
should grant an application for leave to appear and defend made out of time but before the
plaintiff’s application for judgment. Court held that in view of the general powers to enlarge time
conferred by s.96 CPA which is exercisable retrospectively and prospectively and the fact the
defendant’s application disclosed a triable issue, the application should be allowed despite the
defendant’s delay.
In the case of Dr. Sheikh Ahmed Mohammed Kisuule vs. Greenland Bank In Liquidation
MA No. 2 of 2012 was an application for extension of time. Justice Hellen Obura stated that
circumstances under which there was delay in bringing the application cannot be blamed on the
applicant who had instructed lawyers to handle his case. It was held that there was sufficient
ground for failing to bring the application in time as the reason for delay cannot be blamed on the
applicant.
m) Grounds in Support of Application, Test and threshold

The legal proposition is settled that in an application for leave to appear and defend, the
applicant must prove that there is a bonafide triable issue of fact or law that he will advance in
defence to the suit.
In the case of Churanjilal & Co. vs. A.H. Adam (1950) 17 EACA 92, the Court of Appeal for
East Africa held that a defendant who has a stateable and arguable defense must be given the
opportunity to state and argue it before court. That principle was considered by the High Court
of Uganda in the case of Maluku Interglobal Trade Agency vs. Bank of Uganda [1985] HCB
63 Odoki J (as he then was) held that;
‘‘Before leave to appear and defend is granted, the defendant must show by affidavit or
otherwise that there is a bonafide triable issue of fact or law. When there is a reasonable ground
of defense to the claim the plaintiff is not entitled to a summary judgment. The defendant is not
bound to show a good defense on the merit but should satisfy court that there was an issue or
question in dispute which ought to be tried and court should not enter upon the trial of the issues
disclosed at this stage.’’
In the case of Maria Odido vs. Barclays Bank of Uganda Ltd HC Misc Application No. 645
of 2008 Mukasa J. followed the above principle and further observed that at this stage 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. Court must be certain that if the fact alleged by the applicant were
established there would be a plausible defense and if the applicant has a plausible defence he
should be allowed to defend the suit unconditionally.
In the case of Miter Investments Ltd vs. East African Portland Cement Co. Ltd (MA
NO.0336 of 2012) Justice Christopher Madrama referred to the case of M.M.K Engineering
Ltd vs. Mantrust Ltd MA No. 128 of 2012 where the applicant filed the application for orders
that the applicant be granted leave to defend suit and referred to Odgers’ Principles of Pleadings
and Practice in Civil Actions in the High Court of Justice Twenty-Second Edition pages 71-78
for the principles for leave to defend include the following:
1. The Applicant must show the court that there is an issue or question of fact or law in
dispute which ought to be tried.(In Uganda an application for leave to defend a suit
under order 36 of the Civil Procedure Rules, must disclose bonafide issues for trial of
questions of law or fact (see Maluku Interglobal Agency Ltd vs. Bank of Uganda
[1985] HCB 65)
2. Where the Defendant shows that there was such a state of facts as leads to the
inference that at the trial of the action he may be able to establish a defense to the
Plaintiffs claim, he ought not to be debarred of all power to defeat the demand made
upon him.
3. Where the defense that is proposed is doubtful as to its good faith, the Defendant may
be ordered to deposit money in court before leave is granted
4. Whenever there is a genuine defense either in fact or in law, the Defendant is entitled
to unconditional leave to defend. (If the Applicant /Defendant has a plausible defense
he should be allowed to defend the suit unconditionally See Abubaker Kato Kasule vs
Tomson Muhwezi [1992-93] HCB 212)
5. General allegations however strongly may be the words in which they are stated, are
insufficient to amount to an averment of fraud of which any Court ought to take notice.
(In Uganda it has been held that ‘‘In all applications for leave to appear and defend
under Order 33 rules 3 and 4, (now O.36 r 3 and 4) the court must study the grounds
raised to ascertain whether they disclose a real issue and not a sham one, i.e. the court
must be certain that if the facts alleged by the Applicant / Defendant were established,
there would be a plausible defence; (See Kireju J in Abubaker Kato Kasule v Tomson
Muhwezi [1992-93] HCB 212
6. The Defendant may in answer to the Plaintiffs claim rely upon a set off or counter
claim. A setoff is a defense to the action. Where it is a counterclaim, and there is no
connection with the Plaintiff’s cause of action, the Plaintiff may be given leave to
obtain judgment on the claim provided that it is clearly entitled to succeed upon it and
will be put to unnecessary expense in having to prove it. It is within the courts
discretion to stay execution up to the anticipated amount of the counterclaim pending
the trial of the counterclaim or further order.
In the Supreme Court case of Post Bank (U) Ltd vs. Ssozi SCCA No. 8/2015 Tumwesigye
JSC held that defendants in cases which fall under O.36 are protected by being given the right
to apply to court for leave to appear and defend the suit. When court receives their application
and is satisfied by the defendant’s affidavit that the defendant has raised a genuine triable and
not a sham or frivolous issue, it will grant the defendant leave to appear and defend the suit.
(O.36 r 4)
Suing upon a Bill of Exchange like Cheque, Promissory note

In the case of Miter Investments Ltd vs. East African Portland Cement Co. Ltd (MA
NO.0336 of 2012) Justice Christopher Madrama referred to the case of Kotecha vs. Muhammed
[2002] 1 EA 112 that the Court of Appeal of Uganda held that in a summary suit the Applicant
has to show bona fide triable issue but the situation is different if the Plaintiff sues upon a bill of
exchange. That Justice Berko of the Court of Appeal held:
‘‘Under the English Rule the Defendant is granted leave to appear and defend if he is
able to show that he has a good defence on the merit(s); or that a difficult point of law
is involved; or a dispute as to the facts which ought to be tried; orb a real dispute as to
the amount claimed which requires taking an account to determine; or any other
circumstances showing reasonable grounds of a bonafide defence. See Saw v Hakim 5
TLR 72; Ray v Barker 4 Ex DI 279. The Position is however, different where the
Plaintiff sues under a cheque or promissory Note or Bills of Exchange’’
That the Court of Appeal in Kotecha vs Mohammad at page 118 further held that a bill of exchange
(such as a cheque) is to be treated as cash and held as follows:
‘‘The English authorities, particularly James Lamont and Company Limited v Hyland
Limited [1950] 1 KB 585; Brown, Shipley and Company Limited v Alicia Hosiery
Limited [1966] Rep 668, establish that a Bill of Exchange is normally to be treated as
cash. The holder is entitled in the ordinary way to judgment. If he is a seller who has
taken bills for payment, he is still entitled to judgment: no matter that the Defendant
has a cross claim for damages under the contract of sale or under other contracts. The
buyer must raise those in a separate action.. .’’
It was held that in light of the dishonoured cheques, the court will grant conditional leave to the
defendant to deposit in court a sum of Ushs. 121,000,000/- within two weeks from the date of the
order.
Attaching a Draft Written Statement of Defense to the Application.

In practice it is sometimes helpful if the intended Written Statement of Defense is attached to the
application for leave to appear and defend.
In the case of UCB vs. Mukome Agencies [1982] HCB 21 the Court of Appeal per Curiam stated
that when applying for lave to appear and defend a suit it would serve a good purpose if the intended
written statement of defense is annexed to the notice of motion in order to avoid the unnecessary
costs which would of necessity, be incurred on appeal. It would also help the judge to make up his
mind whether to refuse or grant the application considering the written statement of defense and the
plaint.
In the case of Sterling Travel & Tour Services Ltd & Anor vs. Millenium Travel & Tour
Services Ltd Misc. Appl No. 116 of 2013 was an application seeking unconditional leave to appear
and defend a summary suit. Court stated that it is not mandatory to attach a Witten statement of
defense to the application. That at least Order 36 rule 4 of the CPR under which this application was
brought, does not require an applicant for leave to appear and defend a summary suit to attach a
written statement of defense to do so. That this is in context in which Tsekooko J. (as he then was)
observed in the case of Acaali Manzi Vs. Nile Bank Ltd [1994] KALR 123 that when applicants apply
for leave to defend the applicant would do well to attach a draft written statement of defense showing
such a defense.
Judgment upon refusal to give leave.

Under O. 36 r 5 CPR, where, after hearing an application by a defendant for leave to appear and
defend the suit, the court refuses to grant such leave, the plaintiff shall be entitled as against the
defendant to a decree. In the Supreme Court case of Post Bank (U) Ltd vs. Ssozi SCCA No. 8/2015
Tumwesigye JSC held If court is not satisfied that the defendant has raised a triable issue, it will
refuse to grant leave to appear and defend the suit, and the plaintiff will be entitled to a decree in the
amount claimed in the plaint with interest, if any (O.36 r 5)
In the case of Uganda Red Cross vs. Kangaroo (U) Ltd HCMA 919/2014, the application was for
leave to appear and defend a summary suit. The claim was for Ugx. 377,427,200/- a balance
outstanding from a supply of items as indicated in the local purchase order and delivered to the
applicant. The applicant’s contention was that there was a triable issue; whether there was actual
supply. Court held that the applicant had failed to satisfy court that there is an issue that ought to be
tried to warrant the grant of leave to appear and defend. That after filing the suit for the sum of Ugx.
553,968,200 the applicant went ahead and paid the respondent Ugx. 176,541,000/- leaving a balance
of Ugx. 377,427,200. That this a lone shows that the applicant did not deny indebtedness and the
judge wondered why it is at this point that the applicant questions whether there was actual supply
when it already made part payment. Court entered a summary judgment in favour of the plaintiff for
the sum of Ugx. 377,427,200/-.
Judgment for part of claim, defence as to residue.

Under O.36 r 6 CPR If it appears that the defence applies only to a part of the plaintiff’s claim, or that
any part of his or her claim is admitted, the plaintiff shall be entitled to a decree immediately for such
part of his or her claim as the defence does not apply to or as is admitted, and the defendant may be
allowed to appear and defend as to the residue of the plaintiff’s claim.
In the case of Caltex Oil (U) Ltd vs. Kyobe [1988-1990] HCB 141 Court held that 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 defendant / applicant was putting forward in this case was his indebtedness to the
plaintiff was not in the amount claimed in the plaint; this was not contested. That the
defendant/applicant was therefore entitled to defend part of the plaintiff’s claim which he was
disputing.
Conditional or Unconditional Leave

Under O.36 r 8 CPR leave to appear and defend the suit may be given unconditionally, or subject to
such terms as to the payment of monies into court, giving security, or time or mode of trial or
otherwise, as the court may think fit.
In the case of Kundalal Restaurant vs. Devshi and Co. [1952] 19 EACA 77 the Court of Appeal
held that leave will normally be given unconditionally; it will only be given subject to payment into
court where there is a good ground for believing that the defense is a sham.
In the case of Miter Investments Ltd vs. East African Portland Cement Co. Ltd (MA NO.0336 of
2012) Justice Christopher Madrama was held that there are some bonafide questions of fact which
have been raised that ought to be tried in the suit. However in light of the dishonoured cheques, the
court will grant conditional leave to the defendant to deposit in court a sum of Ushs. 121,000,000/-
within two weeks from the date of the order and the defendant was granted leave on the above
condition to file a defence within 14 days from the date of the order.
In the case of Tusker Mattresses U Ltd vs. Royal Care Pharmaceutical Ltd HCMA No. 38 of
2010 in an application for unconditional leave to defend the suit. The Court ordered that 505 OF THE
Ushs. 400,000,000/- claimed in the plaint in summary suit be deposited in court before the applicant /
defendant files its written statement of defense which must be filed within 15 days from the date of
the ruling.
Orders for further conduct of suit.

Under O.36 r 10 CPR where leave, whether conditional or unconditional, is given to appear and
defend, the court shall have power to give all directions and make all orders as to pleadings, issues,
and any further steps in the suit as may then appear reasonable or necessary, or may order the suit to
be immediately set down for hearing.
In the case of Miter Investments Ltd vs. East African Portland Cement Co. Ltd (MA NO.0336 of
2012) Justice Christopher Madrama was held that Order 36 rule 10 of the Civil Procedure Rules
permits the court, where leave whether conditional or unconditional is granted, to give all directions
and make all orders as to pleadings, issues, and further steps in the suit as may appear reasonable or
necessary. Accordingly it is the discretion of court that the parties shall agree on an independent
auditor to reconcile the accounts of the parties relating to the claim in the suit within one month from
the order failure of which the court shall appoint an auditor after the parties have forwarded three
names that they will have agreed upon to the court for that purpose.
Setting aside Decree, Leave to appear and defend, setting aside execution and stay of execution
036R.11
Under O.36 r 11 CPR after the decree the court may, if satisfied that the service of the summons was
not effective, or for any other good cause, which shall be recorded, set aside the decree, and if
necessary stay or set aside execution, and may give leave to the defendant to appear to the summons
and to defend the suit, if it seems reasonable to the court so to do, and on such terms as the court
thinks fit.
The defendant /applicant should make an omnibus application seeking setting aside the judgment and
decree as well as leave to appear and defend. It is not prudent practice to merely set aside without
including an order to appear and defend.
a) Applicability;
Applicable where a default judgment has been made and decree obtained.
In the case of Uganda Telecom Ltd vs. Airtel Uganda Ltd HCMA 30 of 2011 Justice Hellen Obura
stated that where a default judgment has been entered and a decree obtained the appropriate remedy
would be to apply to set it aside under Order 36 rules 11 of the CPR. That the law is quite clear and
there are many authorities to that effect including the case of Konoweeka Architecture Painters &
Buliders Ltd vs. Daniel L. Mukasa [1976] HCB 222.
b) Procedure of Application
O.52 r 1 CPR except where expressly provided all applications are by motion.
In the case of Francis Wazarwahi Bwengye vs. Haki. W. Bonera HCCA 33/2009 Justice
Yorokamu Bamwine stated that all applications to court, except where otherwise expressly provided
for under the civil procedure rules, are by motion to be heard in open court. O.52 r. 1 of the CPR is
very clear on this.
c) Grounds in Support of Application, Test and threshold
Under O.36 r 11 CPR the applicant has to prove that the service of the summons was not effective, or
for any other good cause.
that O. 36 r 11 is on setting aside the decree. In the case of Geofrey Gatete & Anor vs. William
Kyobe, SCCA No. 7 of 2005, the S.C explained reasons for setting aside the decree under O.36 r 11
stating that ‘..apart from ineffective service of summons, what the courts have consistently held to
amount to good cause is evidence that the defendant has a triable defense to the suit.’’ That
ordinarily under ordinary suits, once the court has passed a judgment, the only course of action for
losing party is to lodge an appeal against the judgment in the court of appeal. However, under
summary procedure O.36 r 11 gives the court discretionary power to set aside its own decree and stay
execution or set it aside altogether and grant leave to the defendant to appear and defend the suit, if
the court is satisfied that the service of summons was not effective ‘or for any other good cause.’
Good cause has been defined to be some evidence that the defendant has a triable issue.
In the case of Musa Sbeity & Anor vs. Akello Joan M.A No.585 of 2013 the applicant brought the
application for a default judgment and decree entered by court to be set aside, and be granted
unconditional leave to defend the main suit. Justice Elizabeth Kabanda considered the phrase ‘good
cause’ that it is not defined in the CPR but defined in Black’s Law Dictionary, Seventh Edition, as; ‘A
legally sufficient reason’’. That the authors explained that ‘good cause’ is often a burden placed on a
litigant (usually by a court rule or order) to show why a request should be granted or an action
excused. That the phrase ‘‘sufficient cause’’ that is usually used interchangeably used with the phrase
‘good cause’ has been explained in a number of authorities. That in the cases of Rosette Kizito v
Administrator General and Others Supreme Court Civil Application No. 9/86 reported in Kampala
Law Report Volume 5 of 1993 at page 4, it was held that ‘‘sufficient reason’’ must relate to inability
or failure to take the particular step in time. That in Nicholas Rouss vs Gulamhussein Habib Virani &
Anor, Civil Appeal No.9 of 1993 (SC) (Unreported), the Supreme Court laid down some of the
grounds or circumstance which may amount to ‘‘sufficient cause’’. That they include mistake by an
advocate through negligent, ignorance orfprocedure by an unrepresented defendant and illness by a
party.
In the case of Pinnacle Projects Ltd vs Business In Motion Consultants Ltd Misc Appl No. 362 of
2010 Justice Hellen Obura found that the Misc application was not properly filed at the high Court
Civil Registry when the main suit under which the application was brought at the Commercial
Division. That the above notwithstanding mistake was occasioned by the counsel for the applicant
and the law has now been settled that mistake of counsel however negligent cannot be visited on the
litigant and that there many authorities to that effect that bind the court. That the circumstances of the
instant case is one where this principle can be applied and for that reason mistake of counsel is ‘good
cause’ for setting aside the decree.
In the case of Kisawuzi Henry vs. Moses Kayondo Misc Appl. No. 45 of 2011 Justice Mulyagonja
cited Order 36 r 11 CPR and stated that what needs to be established therefore is whether or not there
was effective service of summons on the defendant and if that is found in the positive, then other
good cause has got to be established that would justify the stay of execution, if any, and setting aside
of the decree. That in this case the defendant refused to acknowledge receipt of the process by placing
his hand on the copy for return to court and therefore would not set aside the decree on the ground
that the service of summons and the plaint was not effected upon the defendant. That then she was
left with the obligation to explore whether the defendant has raised other ‘good cause’ to set aside the
decree. That in Sulaiman Nsamba vs. Fred Balinda HCCS No. 102/98 (unreported), Akiiki-Kiiza, J
held that once an applicant for an order to set aside an exparte decree under Order 33 (now36) rule 1
establishes that he has a defense on the merit of the case, then in light of all facts and circumstances
both prior and subsequent, it is just and reasonable to set aside the decree. And in Patel v. Cargo
Handling Services Ltd [1994] EA 75 at page 76, Duffas, P.,stated that in this respect, a defense on the
merit does not mean a defense that must succeed. It simply means triable issues which raise a prima
facie defense and which should go to trial for adjudication.
In the case of Caltex Oil (U) Ltd vs. Kyobe [1988-1990] HCB 141 Court held that it was endowed
with wide and discretionary powers to set aside a decree obtained under O.33 (now O.36) r 3.
However the applicant had to satisfy court either that there was 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 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.
In the case of Ahmed Zirondomu vs. Mary Kyamulabi [1975] HCB 337 Court noted that on the
strength of the affidavit of counsel for the applicant where he deponed that counsel didn’t appear
because he was by mistake sitting in a wrong court was a genuine reason. Counsel was presented
from appearing by sufficient cause.
In the case of Ahmos Investment Group of Companies & 4 Ors vs. Stanbic Bank (U) Ltd HCMA
No. 684/2014 the applicant brought the application by notice of motion under O.36 r 11 and O.5 r 18
CPR seeking orders that summary judgment in default be set aside, unconditional leave be granted to
applicants and defend the suit, set aside execution against the applicants. Court observed that the
records show that service was done to the 1 st applicant at his place of business according to the
evidence of the process server. That the second applicant accepted service for himself and on behalf
of the 1st applicant. The 3rd, 4th and 5th applicants were served through substituted service by order of
court. The extended summons were advertised with the daily monitor and that in both service was
effective. It was also court’s finding that the applicant admitted receipt of double payment in a
number of documents. Court held that the applicants have neither proved a good cause to warrant
setting aside a decree nor depicted the existence of defenses to warrant the grant of leave to appear
and defend the suit.
In the case of Ali Ndawula & Anor. V R.L Jain HCMA No.0624of 2008, the applicant had filed an
application for unconditional leave to appear and defend a summary suit but the applicant and his
counsel did not turn up of the hearing of the application which was dismissed under O.9 r 22. The
applicant then brought an application by notice of motion under s.98 CPA, O.36 r 11 and O.52 r & 3
CPR seeking orders that the judgment or orders against the Applicant /1 st defendant be set aside, be
granted unconditional leave to appear and defend. Justice Lameck Mukasa held that under O.36 r 11
CPR a decree may be set aside for either (i) no effective service of the summons or (ii) other good
cause. That the applicant instructed his advocates to file an application on his behalf for leave to
appear and defend main suit but the lawyers did not inform the applicant for having date and did not
inform the applicant for the hearing date and did not attend court on the hearing date resulting into
dismissal of the application. That considering the reasons, the applicant had a good cause for his
failure to personally attend the hearing and he cannot be condemned for his counsel’s negligence.
That however in the case of Arocha vs. Kassim (1978) HCB 52, it was held that before setting aside
an exparte judgment the court has to be satisfied not only that the defendant had some reasonable
excuse for failing to enter appearance but that there is merit in the defense or in the case itself. This
holding was cited with approval in Senyange vs. Naks Ltd (1980) HCB 30. That it is not enough for
the applicant to merely deny that he owes money to the respondent. The affidavit in support seeking
leave to defend the suit the 2nd defendant admits being a guarantor to the transaction. The court cannot
keep a blind eye to the admission on record. That considering all the above, the application has no
merit to warrant its reinstatement.
Where leave to appear and defend is allowed, the defendant files a written statement of defense
within a period prescribed by court and the process follows an ordinary suit.
Pre-Entry Exam
2010/2011
Qn. 45. A defendant who is served with summons in a suit under summary procedure must take the
following essential steps in court to safeguard his or her interest otherwise a default judgement may
be obtained against him or her:-
2010/2011
Qn. 42. What do you understand by conditional leave to appear and defend in summary procedure?
Topic II-
AFFIDAVITS-O.19 CPR
AFFIDAVITS
Meaning of an affidavit
An affidavit is a written statement which is sworn and signed on oath which can be used as evidence
in court proceedings. (Reliable Trustees Ltd & 3 Ors vs. George F Sebeguya HCCS No. 601 of 1992
on the definition of an Affidavit).
Affidavits are used mainly in interlocutory pleadings. An affidavit should be made by the party to the
proceedings or any other person who can swear positively to the facts upon which the defense or
claim is founded
Circumstances where Affidavit Evidence is Applicable and the Practice
Section 2 of the Statutory declarations Act restricts the use of Affidavits to proceedings, application
or other matter commenced in any court or referable to a court; or where under any written law an
affidavit is authorized to be sworn.
Section 3 of the Statutory declarations Act provides that a person wishing to depone to any fact for
any other purpose not provided for by law may do so by means of a statutory declaration. This covers
matters like verification of names, qualification, signatures, loss of documents, application for
enrollment, certification of advocates etc However where any person has sworn to an affidavit for any
purpose other than a purpose specified by law, that affidavit shall, nevertheless, be taken for all
purposes to be a statutory declaration.
In the case of Col. (Rtd) Dr. Besugye Kizza vs. Museveni Yoweri Kaguta & Electral Commission
S.C Election Petition No.1/2001 Odoki CJ (as by then) considering the issue as to whether the
document filed by Hon. Okwir was an affidavit or a statutory declaration, the document headed
‘affidavit’’ but at the end it stated, ‘and I make this solemn declaration conscientiously believing the
same to be true and by virtue of the Statutory Declarations Act’ declared before
solicitor/Commissioner. It was held that the intention was to swear an affidavit but the form the
document took was that of a statutory declaration. That the document was witnessed by a
solicitor/commissioner for oaths who had the power to administer an affidavit. The most important
element is that it was made on oath. That it is a matter of form which should be disregarded by
applying the principle set out in article 126 that substantive justice shall be administered without
undue regard to technicalities, given the special circumstances of the petition.
All formal applications are by notice of motion and chamber summons and other forms of pleadings
such as summary procedure on specially endorsed plaint-O.36 CPR, Originating summons O.37 CPR,
election petitions, constitutional petitions, probate and matrimonial proceedings and all proceedings
were evidence required by law to be adduced by affidavits.
Unless otherwise expressly provided by law all applications to court are by notice of motion. A notice
of motion states in general terms the ground of application. It should be supported by evidence set out
in details by affidavit.
No affidavit is required where a matter rests on law. In the case of Odongkara vs. Kamad (1968)
B.A. 210, held that no affidavit is necessary where the application rests on matter of law.
The Applicable Law on Affidavit Evidence
O.19 r 1 CPR provides that in all proceedings it is open to court at any time for sufficient reasons to
order that any particular fact or facts to be proved by affidavits or that the affidavit of any witness be
read at the hearing.
O.19 r 2 CPR provides that a party to the proceedings can apply to give evidence by affidavit and the
court has powers to order attendance of the deponent to be cross examined at the instance of either
party.
In the case of Thornhill-V- Thornhill (965) EA 268 held that O.17 r 1 CPR (now O.19) empowers
the court to exercise its discretion to allow or disallow evidence to be given by affidavit and this
applies in exceptional circumstances where the witness cannot be produced and in this case the
petitioner had undergone some expenses in procuring the evidence by affidavit and this was an
exceptional case in which the affidavit ought to be accepted.
O.19 r 3 CPR provides that affidavits shall be confined to such facts as the deponent is able of his or
her own knowledge to prove except in interlocutory applications where statements based on belief
and information will be admitted provided that the grounds of belief and the sources of the
information are stated.
In the case of Kato Luguza & Anor vs. Nakafero & Anor (Civil Appeal No. 37 of 2011) Court
held that the averments in affidavit were based on information the source disclosed and that this is in
line with Order 19 rule 3(1) of the Civil procedure Rules which governs affidavits.
Evidence rules do not apply to affidavits
Sec.1 of the Evidence Act limits the application of the Act to affidavits presented to any court or
officer nor to proceedings before an arbitrator.
In the case of Life Insurance Corp. of India vs. Panesar (1976) E.A 615 held that unless otherwise
provided for in a written law, rules of evidence do not apply to affidavits. That there being no such
written law, the best evidence rule does not apply to affidavits.
In the case of Kakooza John Baptist vs Electoral Commission and Anor Election Petition Appeal
No. 11 of 2007 it was stated that the opinion expressed in Life Insurance Corp. of India vs. Panesar
(1976) E.A 615 is that:
‘Unless otherwise provided for by a written law, the rules of evidence do not apply to affidavit. There
being no such written law, the best evidence rule does not apply to affidavit.’’
That the rules that apply to affidavit evidence do not necessarily apply to annextures to those
affidavits. That the reason for this view is that the affidavit contains the facts to which the deponent
swears to be true because he or she has personal knowledge of them. That this cannot always be true
of annextures to affidavits.
Types of Affidavits
The various types of Affidavits include the following;
i) An affidavit in support
An Affidavit in support of motion is a sworn statement that sets forth the facts that support the
motion. In the case of MS Job Connect (U) Ltd vs. DFCU Bank HCMA No. 627/2014, the
application was for leave to appear and defend civil suit brought under O36r 3 & 4 and O 52 r 1& 2
CPR supported by affidavit. Justice Hellen Obura on the issue whether the notice of motion can
stand without an affidavit in support cited the case of Kaingana vs. Dabo Boubou [1980] HCB] 59
for the authority that where an application is grounded on evidence by affidavit, a copy of the
affidavit intended to be used must be served with the application. In such a case the affidavit becomes
part of the application. The notice of motion cannot on its own be complete application without the
affidavit. That in the instant case the notice of motion was not enough. That following the above
authorities the application was incompetent without the supporting affidavit and cannot stand. That
applications under O. 36 CPR are grounded on evidence by affidavit and therefore an affidavit is
mandatory requirement. Any application that does not comply with the requirement would be
incompetent.
Also in the case of Samuel Mayanja vs. URA HCMC No. 17/2005 Justice Egonda Ntende held that
where an applicant files an application under 052, such applicant is required under O52 r 3 CPR to
attach an affidavit to the notice of motion.
The motion or application together with the affidavit are filed in court registry and copies of both are
served on the opposite party. No motion or application can be heard without notice to the parties
affected thereby. This is provided under O.48 r 2 and 4 CPR.
ii) An affidavit in reply / opposition.
An affidavit in reply is an affidavit served in court proceedings in which a deponent is desirous of
opposing a particular application.
In the case of Energo Projekt vs. Brigadier Kasirye Gwanga & Anor HCMA No. 558/2009 Jusrice
Murangira held that both respondents refused to file affidavits in reply and in such scenarios, the
parties are presumed to have conceded to the application. He referred to the case of Samwiri vs, Rose
Achan (1978) HCB 297 whereof Ntabgoba Ag J (as then he was) held that where facts are sworn to in
an affidavit and they are not denied or rebutted by the opposite party, the presumption is that such
facts are accepted. That this very case binds both respondents. Their failure or refusal or neglect to
file affidavits in reply when they were duly served with the application is clear indication that they
never intended to challenge the application.
In the case of Massa vs Achen [1978] HCB 297, the burden to deny such facts sworn in an affidavit
lies on the other party. If such party does not deny or rebut them, they are presumed to have been
accepted, and the deponent needs not to raise them again, but if they are disputed then he has to
defend them again.
In the case of Makerere University vs St. Mark Education Institute Ltd & Ors [1994] KALR 26
Lugayizi J held that in an application proceedings by evidence supplied by affidavits, where there is
no opposing affidavit, the application stands unchallenged.
In the case of Shelton Okabo vs Standard Chartered Bank (U) Ltd, Misc Appl. No. 51 of 1992
Before Okello J as he then was held that since the respondent/plaintiff nor his counsel filed an
affidavit in reply to the supporting affidavit filed by counsel for the applicant, the statements of facts
contained therein remained uncontroverted.
iii) An affidavit in rejoinder

This is a response by the petitioner to the counter affidavit filed by the respondent. It is filed by the
applicant in an attempt to controvert the contents of the affidavit in reply more so the new issues
raised.
iv) An Affidavit in sur rejoinder.
This is the respondent’s answer of facts to the applicant’s rejoinder. It is filed in response to an
affidavit in rejoinder and with leave of court.
v) Supplementary affidavit
This is an additional affidavit or subsequent affidavit in addition to the original affidavit.

In the case of Kakooza Jonathan & Anor vs. Kasaala Co-operative Society Ltd SC Application
No. 13/2011 Tumwesigye JSC on the issue whether the affidavit contained falsehood in that the
deponent described himself as a female adult of sound mind whereas he was a male adult Uganda. It
was held that the deponent 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.
Cross examination of Deponents, Procedure and the Practice
O.19 r 2 CPR provides for the power of court to order attendance of deponent for cross-examination.
Court may order for cross examination of deponent on application of the adversary party. In the case
of Premchard Richard vs. Ouamy Services Ltd (1969) EA 514 AT 517 Spry J as he was held that
court has discretion to order attendance of a deponent for cross examination upon application.
In the case of Kipoi Tonny Nsubuga vs R.Wetaka & ors, Election Petition Appeal No. 7/2011, it was
held that the right to cross examine a witness by the opposite party was one of the essential
ingredients of a fair hearing and that it was fatally erroneous for the trial judge to have let a witness
go without being cross examined.
However the application to cross examine a deponent should disclose circumstances necessitating the
cross examination of the deponent to the affidavit. In the case of Madhvani Group Ltd vs. Simbwa &
2 Ors MA No. 1160 /2012, court held that respondent counsel in his oral application did not point out
any peculiar facts or circumstances necessitating the cross examination of the deponent and court
failed to trace the basis of his oral application in the circumstances of the case.
In the case of Aya Investments (U) Ltd vs M/s Kibeedi & Co. Advocates Misc. Appl. No. 491 of
2008 learned counsel for the respondent made an application for cross examination of a deponent of
an affidavit. Court held that the deponent of an affidavit in support of the application, given that he
alluded to the documents which the respondent disputes, there is reason for him to be summoned for
cross examination purposes before the application is heard in earnest. That a party to a suit is entitled
to raise an objection to the competence of his adversary’s pleadings during the hearing of the suit or
before hearing thereof.
Failure of the deponent to appear for cross examination will lead to striking out the affidavit.
In the case of CTM Uganda Limited & 2 Ors vs Allmuss Properties Uganda Ltd & 3 Ors MA No.
1389/2017 counsel for the respondent sought leave to cross examine a deponent to the affidavit
because it contradicted his past activities in the matter. Court granted the application but deponent
failed to appear. Court held that failure of the deponent to appear for cross examination can only lead
to striking out of the affidavit and this leaves the application by notice of motion without evidence to
support it and dismissed with costs.
Contents of an affidavit
O.19 r 3 CPR provides that affidavits shall be confined to such facts as the deponent is able of his or
her own knowledge to prove except in interlocutory applications where statements based on belief
and information will be admitted provided that the grounds of belief and the sources of the
information are stated.
In the case Three Ways Shipping Services Group Ltd vs. MTN (U) Ltd HCMA No. 584 of 2013
Justice Madrama stated that Order 19 rule 3 of the Civil Procedure Rules deals with matters to which
affidavits shall be confined. Sub rule 3 (1) provides as follows:
‘‘Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to
prove, except in interlocutory applications, on which statements based on his or her belief may be
admitted, provided that the grounds thereof are stated.’’
That consequently the provision of law confines affidavits to such facts as the deponent is able of his
or her knowledge to prove except on interlocutory applications. In other words, it is a re-enactment of
the rule against hearsay evidence.
S.C Election Petition No.1/2001 Odoki CJ (as by then) held that affidavits based on information and
belief should be restricted to interlocutory matter. In proceedings which finally determine the matter
only affidavits based on the deponent’s knowledge should be acted upon. The case of Paulo K.
Ssemogerere and Z. Olum v. A.G Constitutional Petition No. 3/1999 was cited whereof Berko JA held
that except in purely interlocutory matters affidavits must be restricted to matters within the personal
knowledge of the deponent. They must not be based on information or be expression of opinion.
Affidavits should be confined to such facts, as the deponent is able of his own knowledge to prove.
Affidavits by person having no personal knowledge of the facts and merely echoing the statement of
claim cannot be used at the hearing.
In the case of Pacific Summit Hotel Ltd vs. DFCU Bank (U) Ltd HCMA No. 9/2013 it was stated
that the law governing affidavits in O.19 r. 3 is to the effect that,
‘‘Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to
prove, except on interlocutory applications, on which statements of his or her belief may be admitted
provided that the grounds thereof are stated.’’
That in Premchard Richard vs. Ouamy Services Ltd (1969) EA 514 AT 517 Spry J as he was said,
‘‘It has repeatedly been said by this court that affidavit based on information must disclose the
source of information (see Standard Goods Corporation Ltd vs. Harakchard Nahus and Co. (1950)
17 EACA 9) on this ground alone the judge would have been entitled to refuse to act on the affidavit,
this is not merely a matter of form, but goes to the essential value of the affidavit.’’
That also in Eseza Namirembe v. Musa Kizito (1972) ULR 88 which was a case by originating
summons the application was dismissed amongst other reasons because the supporting affidavit did
not set forth the plaintiff’s means of knowledge or her grounds of belief and did not distinguish
between matters stated on information and belief and those deponed to on the deponents knowledge.
That the above seems to be the strict interpretation of the requirements of O.19 r 3 of the Civil
Procedure Rules by the Courts. Numerous authorities have continued to emphasize that an affidavit
which does not conform to the above requirement is defective and must be rejected. That Hon. J.
Okello emphasized this position in Allen Isingoma v. Alex Muhairwe & 2 Ors HCCS No. 39/92,
when he held that,
‘‘It is clear that disclosing the source of information, of facts deponed to information and giving
ground of belief where facts are deponed to on belief and distinguishing between those facts which
are deponed to on information, belief and knowledge of the deponent are fundamental requirement in
the drafting of an affidavit. An omission in any of them goes to the essential root of the affidavit. It
renders the affidavit incurably defective.’’
That according to the matters deponed to in the affidavit deponent avers to issues of personal
knowledge, but does not distinguish them from that are in his belief so that he points out the grounds
on which he bases to believe so. That he has deponed to matters within his information, again without
distinguishing them from those within his knowledge and belief. The affidavit is presented as a whole
without taking heed to the requirement that govern affidavits in support of interlocutory matters under
O.19 r 3. That the affidavit is found to be in violation of the above legal requirement and is therefore
incurably defective.
That court was alive to the current practice where courts have since the Supreme Court decision of
Kiiza Besigye v. Museveni, and the provisions of Article 126 of the Constitution relaxed this
provision to allow parties save parts of affidavits not found offensive in the name of substantive
justice; as discussed by J.Lugayizi in Italian Ashalthaulage Ltd & 2Ors v. Assit (U) Ltd CA No.90 of
2000.
That however this practice is distinguishable from the circumstances of the application, where there
was a total failure to conform to the rules making it impossible for the court to save the affidavit. That
the deponent states that he is the managing director of the applicant hotel and deponed in that
capacity, however he later depones to facts within the specialty of the bank, and matters within the
specialty of law. That the affidavit is incurably defective and cannot be allowed to stand. Without the
affidavit, there is no motion, without motion there is no application, therefore the application must
fail and dismissed for violating the provisions of O.19 r. 3.
Affidavits Deponed in Representative Capacity
O.1 r 12 CPR provides that where there are more plaintiffs than one, any one or more of them may be
authorized by any other of them to appear, plead or act for that other in any proceeding, and in like
manner, where there are more defendants than one, any one or more of them may be authorized by
any other of them to appear, plead or act for that other in any proceeding. The authority shall be in
writing signed by the party giving it and shall be filed in the case.
In the case of Mukuye Steven & 106 Ors vs Madhivani Group Ltd MA No. 0821/2013 the issue was
whether the applicants had legally given their authority to the parties claiming to represent them.
Court held that from the clear wording of O.1 r 12 CPR there appears to be nothing that prohibits the
deponent from swearing an affidavit on behalf of others who have given him the authority in writing
duly signed to represent them. That the annexure to the affidavit meets the requirement under sub rule
2 that the form of the authority shall be in writing signed by the party giving it.
In the case of Kaingana vs. Dabo Boubou [1986] HCB 59. In that case the affidavit accompanying
the application was sworn by the husband on behalf of the wife. The objection was that the husband
not being a party to the suit, could not swear such an affidavit when he was not a recognized agent
and had not filed papers which authorized him to act in that representative capacity. Court held as
follows:-
‘‘A person is competent to swear an affidavit on matters or facts he knows about or on information he
receives and believes. Whereas the deponent in this application claimed that he was fully acquainted
with the facts deposed to nevertheless he swore the affidavit in a representative capacity. There was
no authority given to him by the defendant to qualify him act on his behalf either as his advocate or a
holder of power of attorney or duly authorized. The affidavit was therefore incompetent and
defective.’’
Whether stamp duty is chargeable on an affidavit.

In the case of Uganda Tax Operators and Drivers Association Vs. Kampala Capital City
Authority and the Executive Director KCCA (MA 137 of 2011) the issue of whether stamp duty is
chargeable on an affidavit in support of an application. Justice Mwangusya found as follows;
‘‘This court is of the view that an affidavit in support of a Notice of Motion which is pending before
this court does not create a right or liability like in the case of PROLINE ACADEMY V LAWRENCE
MULINDWA cited in this trial. If any right or liability was to arise out of this pleading it would arise
at the conclusion of the trial and this affidavit which is part of the notice of Motion is not such an
instrument as envisaged in the Stamps Act. The inclusion of ‘Affidavits’ in the schedule to the Act
would only refer to the affidavits that create, transfer, limit, extend or create a right or liability which
the affidavit in question does not…’
In the case of Pearline Investment Ltd vs. Kampala Capital City Authority & Anor HCMC
23/2012 held that affidavits referred to under the Stamps Act for which Stamp duty is payable are
those that confer a right or liability on a party, but this is not the case with an affidavit in support of
an application by way of motion which is a pleading.
Procedure of Deponing Affidavits
Every affidavit must comply with the Commissioner for Oaths (Advocate) Act, Cap 5, Oaths Act Cap
6 which sets out the form and manner in which the oath may be taken.
An affidavit sets out the relevant facts in paragraph numbered consecutively / progressively. It can be
sworn before a judge, magistrate, registrar, justice of peace, notary public, commissioner for oaths or
other authorized person.
The Affidavit must be voluntary and the signature of the deponent must be verified by the person
before whom the affidavit is made. That person is also required to indicate the date and place where
the oath of affidavit is made or taken and countersign and seal / stamp the document. (See s. 4 & 5 of
the statutory declarations Act and Commissioner for Oath Advocates Act, s.6 of the Oath Act and S.3
of the Justice of the peace Act Cap. 15)
The prescribed wording / form of jurat or attestation is stated in the 3 rd schedule to the commissioner
for oaths (Advocates) Act as follows;
Sworn/Declared before me, ______________________________, at this ________ day of

_______________, 20 ____, at _________________ __________________________
_________________________________
Commissioner for Oaths
S.C Election Petition No.1/2001 Odoki CJ (as by then) held that the Commissioner for Oaths
(Advocates) Act states that every commissioner for oaths before whom any oath or affidavit is taken
or made under the Act shall truly state in the jurat or attestation or what place and on what date the
oath or affidavit is taken or made. That Rule 9 of the schedule provides the form of jurat set out in the
third schedule to the rules. That the 1 st respondent’s affidavit did not indicate the names or title of the
person before whom it was made. It merely contained a signature and seal of the High court. That the
registrar of the High Court has by virtue of his office all the powers and duties of a Commissioner for
Oaths in accordance with section 4 of the Commissioner for Oaths (Advocates) Act. That the
registrar’s jurat fulfilled the essential requirements of the jurat namely place and date of the affidavit
was made. But it should have included his name and title to strictly comply with the Form of jurat
contained in the schedule. That the lack of proper form was however cured by the affidavit sworn by
Mr. Gidudu. (registrar)
*A jurat is a clause at the foot of an affidavit showing when, where, and before whom the actual oath
was sworn or affirmation was made.
The practice usually is that the Muslims affirm while Christians swear and other religions declare.
But the Oath Act only provides that you can either swear, affirm or declare so long as its voluntary.
Where the affidavit / statutory declaration has been drafted by an Advocates, the Advocate Act Cap.
267 requires that the affidavit should indicate at the end of the last page the names of the advocate or
law firm which drew and filed that affidavit in court or statutory declaration.
Sec 4(1) of the Commissioner for Oath (Advocates) Act prohibits a commissioner for Oath from
taking or receiving and sealing an affidavit in proceedings of matters in which he/she is the advocate
for any of the parties and his/her clerk is interested.
S.C Election Petition No.1/2001 Odoki CJ (as by then) considering an issue of challenged affidavits
filed in court on account of having been sworn by two advocates who were part of the team of
counsel for the petitioner held that in view of the fact that the two advocates by the time they
commissioned the affidavits were not members of the team representing the petitioner or otherwise
participating in the proceedings, he was not satisfied that the affidavits they commissioned are
inadmissible.
Rule 7 of the Commissioner for Oath rules requires a commissioner for Oath to satisfy himself that
the person named as the deponent and the person before him are the same and that the person is
outwardly in fit state to understand what she is doing before taking an Oaths.
Rule 8 of the schedule to the commissioner for oath (Advocates) Act Cap. 5 require that all exhibits
to affidavits shall be securely sealed to the affidavits under the seal of the commissioner and shall be
marked with serial letters of identification. The forms of identification of exhibits is set out in the
Third Schedule to the Rules as follows;
This is the exhibit marked “______________________________________” referred to in the
annexed affidavit of _______________________________ sworn/declared before me this ________
day of _______________, 20 ____, at _______________________________.
________________________________
Commissioner for Oaths
In the case of Kebirungi Justine V M/S Road Tainers Ltd & Othrs HCMA No. 285 of 2003 Justice
Ruby Aweri-Opio while considering an issue whether the affidavit in support of the application to
amend the plaint was incurably defective for offending the provisions of rule 8 of the first schedule to
the commissioner for oath (Advocates) Act Cap. 53 cited the case of Uganda Corp. Creamaries Ltd
& Anor vs. Reamoton Ltd CA No. 44/1998 where there was a preliminary objection that the original
and supplementary affidavits supporting the notice of motion were incurably defective for offending
rule 8 of the first schedule to the commissioner for Oaths (Advocates) Act for reasons that the
exhibits to those affidavits were not sealed and marked with serial of identification, Engwau JA held
as follows;
‘In my view, whether or not those annexures have been securely sealed with the seal of the Advocate
who commissioned the Affidavits thereof, does not offend rule 8 because they were not exhibits,
produced and exhibited to court during a trial or hearing in proof of facts. In any case the annexures
in the present case were not in dispute. Even if these annexures were detached, the affidavits thereof
would still be competent to support the notice of motion. Rule 8 though mandatory, is procedural and
does not go to the root as to the competence of the affidavits. In the premises substantive justice
should be administered without undue regard to technicalities.’’
The judge held that in light of the authority R.8 is a mere procedural and does not go to the root of the
competence of the affidavit.
Procedure of Deponing Affidavits by Illiterates.
Sec. 1 of the Illiterate Protections Act Cap 78 defines an “illiterate” to mean, in relation to any
document, a person who is unable to read and understand the script or language in which the
document is written or printed. Section 2 thereof provides for verification of the illiterate’s mark on
any document, and that prior to the illiterate appending his or her mark on the document it must be
read over and explained to him or her. Section 3 thereof requires that the document written at the
request on behalf or in the name of any illiterate must bear certification that it fully and correctly
represents his or her instructions and was read over and explained to him or her.
The purpose and effect of the above provisions have been considered in various cases and settled. In
Tikens Francis & Another v. The Electoral Commission & 2 Others, H.C Election Petition No. 1 of
2012 it was held that;
‘‘There is a clear intention in the above enactment that a person who writes the document of
the illiterate must append at the end of such a document a kind of ‘certificate’ consisting of
that person’s full names and full address and certifying that person was the writer of the
document; that he wrote the document on the instructions of the illiterate and in fact, that he
read the document over to the illiterate or that he explained to the illiterate the contents of the
document and that, in fact, the illiterate as a result of the explanation understood the contents
which are purportedly written for and on instructions of illiterate person are understood by
such persons if they are to be bound by their content…these stringent requirements were
intended to protect persons from manipulation or any oppressive acts of illiterate persons…
The requirements of the Illiterates Protection Act are legal requirements and not procedural
requirements. The law can therefore not be bent under Article 126(2)(e) of the
Constitution…’’
The Supreme Court in the case of Kasaala Growers Co-operative Society vs. Kakooza & Another
citing with approval the case of Ngoma Ngime vs. Electoral Commission & Hon. Winnie Byanyima
held that;
‘‘Section 3 of the Illiterate Protection Act (supra), enjoins any person who writes a document
for or at the request or on behalf of an illiterate person to write in the jurat of the said
document his/her true and full address. That this shall imply that he/she was instructed to
write the document by the person for whom it purports to have been written and it fully and
correctly represents his/her instructions and state therein that it was read and correctly
represents his/her instructions and to state therein that it was read over and explained to him
or her who appeared to have understood it.’’ The supreme court went on to hold that the
illiterate cannot own the contents of the documents when it is not shown that they were
explained to him or her and that he understood them. Further, that the Act was intended to
protect illiterate persons and the provision is couched in mandatory terms, and failure to
comply with the requirement renders the document inadmissible.
In the case of Mashari vs. Bakunda (U) Ltd & 3 Ors M.A No. 233 of 2013 the applicant during
cross examination admitted that he had signed the affidavit in support of the application but conceded
that he did not know English and that its contents were only read out to him by his lawyer before he
signed. Justice Eva Luswata stated that the applicant’s affidavit in support of the application does not
bear the certificate of translation showing his lawyer’s full names and full address and certifying that
the lawyer was the author of the document, or that the layer fulfilled any of the requirements under by
the law in respect of an illiterate deponent. That the section was meant to keep the record pure and
true in that the advocate concerned, who in this case is the actual author of the document, stated in
uncertain terms (at the time he made the affidavit) that he had full instructions of the client to make it
and that he ensured that the deponent signed, before a commission for oaths that he understood it
before signing. That this is important because, the concerned advocate cannot at subsequent
proceedings be allowed to clarify on such facts which would be giving evidence from the bar. That it
was incumbent upon the concerned counsel to include a certificate of translation at the foot of the
affidavit which is mandatory legal requirement and not a mere technicality. That this would render
the affidavit incurably defective.
In the case of Nakiwala & 2 ors vs. Rwekibira & Anor HCCS No. 280 of 2006 Honorable Justice
Bashaija K Andrew stated that the term ‘illiterate’ is defined under Section 1(b) of the Illiterate
Protection Act to mean, in relation to any document, a person who is unable to read and understand
the script or language in which the document is written and printed. Section 2 thereof provides for
verification of the illiterate’s mark on any document, and that prior to the illiterate appending his or
her mark on the document it must be read over and explained to him or her. Section 3 thereof requires
that the document written at the request on behalf or in the name of any illiterate must bear
certification that it fully and correctly represents his or her instructions and was read over and
explained to him or her. That going by the settled position of the law, the mandatory provisions of the
Illiterate Protection Act would apply with full force to the two documents. That they cannot be relied
upon in any litigation by any party seeking to enforce a right. It is also the established law that the
provisions are requirements of substantive law and cannot be regarded as technicalities that could be
ignored or cured under Article 126(2)(e) of the constitution
The first schedule to the Oath Act Cap. 19 requires an interpreter’s Oath if the deponent does not
speak and understand English. This oath should be inserted in the affidavit after the deponent’s
signature before the commissioner for oaths signature.
Requirement to state Date and Place of Deponing an affidavit and effect on non compliance
Section 5 of the Commissioner for Oaths (Advocates) Act, Cap. 5 as well as section 6 of the Oath,
Act Cap 19 requires a commissioner for oaths before whom any affidavit or oath is taken to state in
jurat or attestation at what place and date the affidavit or oath is taken.
In the case of Nabukeera Hussein Hanifa vs. Nakibuule Ronald & Anor Election Pet. No 17 of
2011 Justice Lameck N. Mukasa stated that the essential requirement under section 5 of the
Commissioner of Oaths (Advocates) Act is to state the place where and date when the oath or
affirmation is taken or made. That however Hon. Justice Odoki (as by then) in Col. (Rtd) Dr.
Besugye Kizza vs. Museveni Yoweri Kaguta & Electral Commission S.C Election Petition
No.1/2001 adds the requirement to strictly comply with the form of the jurat which also requires the
inclusion of the name and title of the person before whom the oath or affirmation was taken. That in
the case of Suggan vs. Roadmaster Cycles (U) Ltd [2002] EA 25 an affidavit was not dated. Justice
Mpagi-Bahigeine JA (as she then was) held that it is trite that defects in the jurat or any irregularity in
the form of the affidavit cannot be allowed to vitiate an affidavit in view of Article 126(2)(e) of the
1995 Constitution. That a judge has powers to order an undated affidavit to be dated in court or that
the affidavit be re-sworn before putting it on record and may penalize the offending party. That in
Mbayo Jacob Robert vs. EC and Talonsya Sinan CA Election Appeal No. 07/06 Byamigisha JA
stated: ‘‘In the case of Kizza-Besigye (supra), the Supreme Court held that election petitions are very
important and therefore courts should take a liberal view of the affidavits so that a petition is not
defeated on technicalities’’ That as regards failure to seal and mark annextures in Egypt Air
Corporation t/a Egypt Air Uganda vs. Suffish International Food Processors Ltd & Anor SCC
Application No. 14 of 2000 the Justices of the Supreme Court stated: ‘‘We would like to point that
sealing and marking of annextures to affidavits is a legal requirement which, inter alia, facilitates the
easy identification of annextures and in our view the procedure must be adhered to’’ That due to the
peculiar circumstances of the proceedings before the court the Honourable justices reluctantly treated
the omission to comply with the requirements to the Commissioner for Oaths (Advocates) Act all its
scheduled regulation as a technicality, curable under Article 126(2)(e) of the Constitution as it was
felt that the failure did not occasion any injustice. The judge finally held that in view of the peculiar
circumstances of the matter where the oaths or affirmations were administered by officer of this
Honourable Court, as evidenced by the seal of the Chief Magistrate’s court, whose omission should
not be unjustifiably visited on the respective deponents, the defects complained of are curable and
that a supplementary affidavit by the respective court officer before whom the affirmation was made
be filed.
In the case of Ezama vs. Nile Microfinance (U) Ltd & Anor HCCA No. 13 of 2017 Justice Stephen
Mubiru considering an objection to the affidavit said to have been sworn at Arua yet the
Commissioner for Oaths rubber stamp affixed thereto reads P.O.Box 12422 Kampala stated that it is
indeed a mandatory requirement under both section 6 of the Oaths Act, and section 5 of the
Commissioner for oaths (Advocates) Act, that every Commissioner for Oaths, or Notary Public
before whom any oath or affidavit is taken or made should state in the jurat or attestation at what
place and on what date the oath or affidavit is taken or made. In the jurat, the commissioner is
supposed to indicate his or her name, the date and place, then his or her signature. It is therefore very
clear indeed that the jurat should contain the full address of the place where the affidavit was sworn.
That there is a line of authorities to the effect that section 5 of the Commissioner for Oaths
(Advocate) Act and section 6 of the Oaths Act are mandatory and non compliance with the same
renders the affidavit incurably defective (see Teddy Namazzi v. Sibo [1986] HCB 58; Coffee
Marketing Board Ltd v. Bukyenkye Cofee Factory (U) Ltd [1996] H.C.B 59; The Church of Almighty
God Malaki Ltd v. Administrator General and Another, H.C. Misc Civ. Appn No. 92 of 2009; Fred
Kigozi v Paul Musoke, H.C. Misc. App. No. 509 of 2002 ans Sembeguay v. Reliable Trustees, H.C.
Civil suit No. 601 of 1992). That however, it has also been decided in other cases that some defects
are curable and where the defect is curable, the affidavit should not be rejected. For example Munden
v Charles Fredrick Augustus William, Dike of Brunswick and Lumburg, Sued as Charles Fredrick
Augustus William D’Este, Commonly called The Duke of Brunswick, (1847) 136 ER 530, Standard
Chartered Bank Ltd v. Lucton (Kenya) Ltd HCCC No. 462 of 1997, Nabukeera Hussein Hanifa v.
Kibuule Ronald and another, H.C. Election Petition No 17 of 2011, and Col (Rtd) Dr. Besigye Kizza
v. Museveni Yoweri Kagukat and Electoral Commission, S.C. Election Petition No. 1 of 2001. That
guided by the above mentioned decisions and the defect complained of in light of section 43 of the
Interpretation Act, 3 which provides that where any form is prescribed by any Act, an instrument or
document which purports to be in such form shall not be void by reason of any deviation from that
which does not affect the substance of the instrument or document or which is not calculated to
mislead, to derive the principle that deviation from the from the requirements of form, unless
calculated to mislead, should be ignored. That the Commissioner for Oaths Rules (fisrt schedule of
the Act) prescribes a format for jurats. Nevertheless if the defect of the jurat is in form, it should not
be considered a fundamental defect or irregularity, thus can be curable and should not result in
rejection of the affidavit. That as jurat indicating that the affidavit is sworn at Arua but the stamp of
the commissioner for oaths reading in Kampala has the tendency to confuse rather than mislead and
that the defect or irregularity in the form of the jurat, which is not of a fundamental nature that is
curable and which should consequently not result in rejection of the affidavit.
In the case of Esimu Moses vs. Cairo International Bank Ltd & Cellular Galore Ltd HCMA No.
424/2010 Justice Helen Obura held that section 5 of the Commissioner for Oaths (Advocates) Act
Cap. 5 requires that every commissioner for oaths before whom any oath or affidavit is taken or made
under the Act shall state truly in jurat or attestation at what place or on what date the oath or affidavit
is taken or made. That similarly section 6 of the Oaths Act Cap 19, provides for the same. That both
are mandatory provisions of substantive laws and cannot be argued away as mere technicalities under
Article 126(2)(e) of the constitution. That in the case of Kasirye Byaruhanga & Co. Advocates vs.
UDB SCCA No. 2 of 1997 where their lordships adopted earlier ruling in the case of UTEX Industries
vs. A.G SCCA No. 52/19995 that it was our submission that where legislature prescribes something in
mandatory language the relevant provision is imperative and obligatory. Non compliance would
affect the validity of the act done in disobedience of them. That in view of the above authority, there
was non-compliance with section 5 of the Commissioner for Oaths (Advocates) Act, Cap. 5 as well as
section 6 of the Oath, Act Cap 19 when the two affidavits were commissioned. That this therefore
renders them invalid and of no evidential value. That they are struck off and any evidence that they
were meant to present are accordingly disregarded.
In a later case of Stone Concerete Ltd vs. Jubilee Insurance Co. Ltd HCMA No. 358/2012 Justice
Hellen Obura held that the effect of not dating an affidavit is not as fatal as the applicant’s counsel
submitted. That the fact the affidavit is not dated is a defect in the jurat which was held by the Court
of Appeal in Saggu vs. Roadmaster Cycles (U) Ltd [2002] 1 EA 258 to be a mere lapse that cannot
be allowed to vitiate the affidavit in light of Article 126(2)(e) of the Constitution. In that case their
lordships concluded thus, ‘it is therefore clear that failure to date an affidavit or cite correct law or
any law at all are mere errors and lapses which should not necessarily debar an application from
proceeding.’ That in view of the above authority which is binding on the court, the failure to date the
affidavit is a mere lapse and error which is a technicality and ignore in the interest of substantive
justice.
In the case of Kikongo vs. Electoral Commission & Anor Election Appeal No. 75 of 2011 the
issue was whether the provision of s.6 of the Oaths Act are mandatory and what was the legal effect
of having affidavits served on the parties undated while the court record had dated affidavits. Justice
Nyanzi Yasin held that the ‘shall’ as raised in s.6 of the Oaths Act is more directory than mandatory.
Secondly the court records are documents on file as whole. It is the official point of reference in all
proceedings that’s why an appeal is preferred; it is only court record that is relied on, not any notes or
documents of parties. That the moment the trial court found that the court file affidavits were dated, it
then became official that the affidavits in support of the motion/petition were dated.
In the case of Male Mabirizi vs The ATTORNEY General Misc. Application No. 7 of 2018 on the
issue whether the court can substitute an undated affidavit, reference was made to the case of Saggu
vs Road master Cycle (U) Ltd (2002) 1 EA 258 where court held that: ‘a defect in the jurat or any
irregularity in the form of the affidavit cannot be allowed to vitiate an affidavit in view of Article
126(2)(e) of the constitution and that a judge has power to order that an undated affidavit be dated in
Court or that the affidavit be re sworn, and may penalize the offending party in costs.’’ That despite
the fact that this is a court of appeal case; the Supreme Court found its decision persuasive and is
good law. That the case of Kasaala Growers Co-operative Society vs Kakooza Jonathan & Anor
SCCA No. 19 of 2010 draws a clear distinction between an affidavit which is defective and one
which does not comply with the requirements of the law. That the one which is defective is curable
and one which does not comply with the law is curable. That an affidavit which is undated is
defective but one that can be cured. One way of curing such an affidavit is by way of allowing the
affidavit to be dated as was held in the case of Saggu vs Road master Cycles (u) Ltd (2002) 1 EA 258.
That in dealing with a defective affidavit, the case of Hon. Theodore Ssekikubo & 3 Others vs The
Attorney General & 4 Ors Constitutional Application No. 08 of 1998 where it was held that: ‘…a
general trend is towards taking a liberal approach in dealing with defective affidavits. This is in line
with the Constitutional directicve enacted in Article 126(2)(e) of the Constitution…Rules of
procedure should be used as handmaidens of justice but not to defeat it.’ Court held that while the
affidavit in reply filed by the respondent on the 7th December, 2018 was defective in that it did not
bear a date, it was curable and the filing of the subsequent affidavit that was dated and sworn by the
same deponent on the 11th December, 2018 cured the defect.
Commissioning of Affidavits, implications and effect of non-compliance

The commissioner for Oaths must have a valid practicing certificate as an advocate otherwise the
affidavit is invalid and of no effect. See Darlington Bakunda vs. Kinyatta & Anor SCCA No. 27/1996
In the case of Otim Nape George William vs. Ebil Fred & Anor. EP No. 0017/2011 Justice Stephen
Musota stated that under the Commissioner for Oaths (Advocates) Act Cap 5, the Chief Justice
appoints practicing Advocates who have practiced for not less than 2 yrs in Uganda prior to making
the application for appointment, and who are certified to be fit and proper persons by two other
advocates to be commissioners for Oaths. That this appointment is published in the gazette. Each
commission terminates forthwith on the holder thereof ceasing to practice as an advocate. That for an
advocate to practice law, must have a valid practicing certificate. That it is on the basis of this that an
Advocate can continue to be a commissioner for oaths. The commission granted to an advocate under
the Act goes with a practicing certificate. That once an advocate has ceased to practice as such the
commission also ceases. That therefore an advocate whose practicing certificate has expired cannot
legally continue to administer an Oath to any body since his/her practicing certificate is the basis
upon which the commissioner for oaths operates. That regarding the effect on the validity of an
affidavit commissioned or documents filed by an advocate whose certificate had expired, documents
filed after expiry of the days of grace were invalid.
That there are people / officers who under the commissioner for oath (Ad) Act are permitted to serve
as commissioners for oaths even though they are not advocates. Under s.3 thereof magistrates and
registrar are ex-officii commissioners for oaths. That there is a requirement to state the name of the
commissioner for oaths be it an advocate or magistrate in the space provided in the third schedule
form of jurat. That this omission is however minor and can be curable by an affidavit clarifying the
particulars of the officer who administered the oath.
In the case of MS Job Connect (U) Ltd vs. DFCU Bank HCMA No. 627/2014, the application was
for leave to appear and defend civil suit brought under O36r 3 & 4 and O 52 r 1& 2 CPR supported
by affidavit. Justice Hellen Obura while considering the Affidavit commissioned by Mr. Semakula
Augustine held that it is clear from the rulling that Mr. Semakula Augustine was suspended from
legal practice for a period of 2yrs with effect from 31st August 2012. It follows that any affidavit
commissioned by him during the period of suspension would be incurably defective and court can
only strike it out. That the affidavit in support of the application commissioned on 22 nd July 2014 a
month and nine days before the period of his suspension lapsed on 31 st May 2014. The affidavit in
support is incurably defective and is accordingly struck out thereby leaving the application
unsupported. That the next question is therefore whether the notice of motion can stand without an
affidavit in support. The judge cited the case of Kaingana vs. Dabo Boubou [1980] HCB] 59 for the
authority that where an application is grounded on evidence by affidavit, a copy of the affidavit
intended to be used must be served with the application. In such a case the affidavit becomes part of
the application. The notice of motion cannot on its own be complete application without the affidavit.
That in the instant case the notice of motion was not enough. That following the above authorities the
application was incompetent without the supporting affidavit and cannot stand. That applications
under O. 36 CPR are grounded on evidence by affidavit and therefore an affidavit is mandatory
requirement. Any application that does not comply with the requirement would be incompetent.
In the case of Kakooza John Baptist vs Electoral Commission and Anor Election Petition Appeal
No. 11 of 2007 Kanyeihamba JSC citing holding of justice of appeal held that to condone such an
unsworn statement seeking to pass as an affidavit evidence would undermine the importance of
affidavit evidence which is rooted on the fact that it is made on oath and that the affidavit was rightly
rejected.
Filing of affidavits and Consequences of Failure to file Affidavits

An Affidavit in interlocutory applications has to be filed within timelines for filing pleadings in
interlocutory applications.
In the case of Stop and See (U) Ltd vs. Tropical Africa Bank HCMA No. 333/2010 Justice Madrama
held that a reply or defence to an application has to be filed within 15 days failure of which would put
a defense or affidavit in reply out of time prescribed by the rules. That once a party is out of time,
he/she needs to seek leave of court to file a defense or affidavit in reply. That O.12 r 3 CPR should
guide advocates on the timelines for pleadings in interlocutory applications.
In the case of Springwoods Capital Partners Ltd vs. Twed Consulting Company Ltd HCMA No.
746/2014 the issue was whether the respondent’s reply was filed out of time. Relying on the authority
of Stop and See (U) Ltd vs. Tropical Africa Bank Ltd in HCMA No. 333/2010 it was held that a reply
or a defence to an application has to be filed within 15 days.
However in the case of Sebyala Kiwanuka & Anor versus Sendi Edward HCMA No. 500/2014
counsel for the applicant raised a preliminary objection that the affidavit in reply was filed out of time
provided by the rules. Justice Flavia Anglin in overruling the objection held that the supreme court
has established that ‘the essence of all disputes should be heard on merit and that rules of procedure
are meant to be hand maidens of justice and not to defeat it’. That since the affidavit in reply was
filed before hearing of the application, it cannot be said to have prejudiced the applicant. That if the
affidavit complained were to be struck out, the respondent would then possibly file an application for
extension of time which would result in a multiplicity of proceedings which s.33 J.A was meant to
prevent.
In the case of Elias Waziri & 2 Ors vs. Opportunity Bank (U) Ltd HCMA No. 599/2013 Justice
Hellen Obura considering the issue whether the affidavit in reply was filed in time held that O.12 r 3
CPR provides for time lines for filing, serving and hearing of interlocutory applications made after
competition of ADR or where there had been no ADR, after the completion of the scheduling
conference. That in the case of Stop and See (U) Ltd Madrama J held that O 12 r 3 sub rule 2 is meant
to give timelines for all interlocutory applications that are envisaged after completion of the
scheduling conference or ADR. That he observed that the strict interpretation of the rule would imply
that time has to be reckoned from the matters stated in rule 3 sub rule 1 and this means that time runs
from the date of completion of the scheduling conference. That however in the instant case there has
neither been completion of ADR which is mandatory court annexed mediation nor has there been a
scheduling conference because a default judgment was entered. That this application would not fall
within the scope of rule 3 or Order 12 CPR since it was file after the main suit had been disposed of.
That while its true that O51 r 6 CPR gives court power to enlarge time for doing any act or taking any
proceedings under the rules, that should have been made before the affidavit was filed. Be that as it
may, that she will exercise her discretion and validate the affidavit in reply by extending the time at
this stage for the interest of substantive justice to be served.
Falsehoods in Affidavits
An application supported by a false affidavit is bound to fail
In the case of Uganda Micro Finance Union Ltd Vs. Sebuufu Richard and Anor HCT-00-CC-MA
0610-2007Justice Lameck Mukasa cited the case of Sirasi Bitaitwa & Ors vs. E. Kavuma 1977 HCB
34 whereof it was held that 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 to tell the truth.
In the case of Meddie Ddembe Maji Marefu vs. Nalongo Namusisi HCMA No. 35/2002 Justice
Arach Amoko held that an affidavit which contains a deliberate falsehood cannot be relied on. She
relied on the case of Bitaitama vs. Kanamura [1977] HCB 34, whereof it was held that; 1. The
inconsistencies 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 becomes suspect,
2. 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. That the blatant falsehood in the affidavit of the applicant
cannot be ignored, and the application would fail for that reason.
In the case of Solomon Chaplain v Tekplan Ltd HCMA No. 825 of 2013 it was held that in
determining the alleged defect of the affidavit in reply, the defect of an affidavit on account of
falsehood is treated more seriously than other defects because it affects the credibility of the evidence
given by way of that affidavit. It would therefore, have the effect of rendering the affidavit incurably
defective. To that end, court will be inclined to find so in this case if it is proved that the affidavit in
support of the application and rejoinder contain falsehood.
In the case of Sam Aniagyeri Obengi & Anor vs. MTN Real Properties Ltd & Anor MA No. 198
of 2011 Justice Hellen Obura held that the affidavit in support of the application contained obvious
falsehood and therefore the applicants are not coming with clean hands as equity demands. That
finding now leads court to consider the effect of a defective affidavit on an application like this. That
there a number of authorities that adopt a rigid approach in dealing with defective affidavits as well as
those that a dopt a more liberal approach in line with Article 126(2)(e) of the 1995 constitution. A
more rigid approach was adopted in the case of Sirasi Bitaitana and 4 others vs Emmanuel Kananura
[1977] HCB 34 followed in the case of Nathan Katamba vs. Stephen Kabigyema [2000] KALR 780.
That the principle has been refined by adopting a more liberal approach which allows the offending
paragraphs of the affidavit to be severed / ignored and the rest of the content to be admitted/accepted.
This was the holding in a number of case as was stated in the case of Col. (Rtd) Besigye Kizza v
Museveni Yoweri Kagutta & Electoral Commission (Election Petition No. 1 of 2001) [2001] UGSC
3. That this court was bound to apply the liberal approach adopted by the Supreme Court and that
paragraphs in the affidavit that contain falsehood would be ignored and parts that are admissible
would be accepted.
Affidavits deponed by Advocates, implications and legal consequences

Regulation 9 of the Advocates (Professional Conduct) Regn prohibits an Advocate’s personal
involvement in the client’s case. An advocate may not appear before any court or tribunal in any
matter in which he or she has reason to believe that he or she will be required as a witness to give
evidence, whether verbally or by affidavit.
In the case of Jayanth Amratlal & Anor Vs. Prime Finance Co. Limited HCT-CC-MA-225-2008 the
application was supported by an affidavit deponed by an Advocate and a supplementary affidavit to
support the application. Justice Lameck Mukasa observed that the Advocate’s affidavit had
contravened the provisions of the regulation 9 of the Advocates (Professional conduct) Regulations
1979 and thus incurably defective. That the supplementary affidavit had nothing to supplement
thereby rendering the application unsupported.
In the case of Kasajja vs. Iga & Anor HCMC No. 4/2014 the issue was whether the respondent’s
affidavit in reply offends regulation 9 of the Advocates (Professional Conduct) Regulations and Rule
7 of the commissioner for Oath Rules. Court stated that Regulation 9, imports the legal positio0n that
counsel cannot be a witness in the same case his representing. The principle is that it is wrong for
counsel to act as such and at the same time give evidence by affidavit. That the affidavit in reply are
deponed and witnessed by a commissioner. That the Advocate firm appears as the counsel who
drafted the affidavit. The 1st respondent affidavit depones that the contents of the deponents
information in part of his affidavit are advice given by the same firm. That the import of this is that
this firm holds vital information as witnesses for the respondent. This offends regulation 9 of the
Advocates (professional conduct) regulations. That it also offends Rule 7 of the Commissioner for
Oaths Rules (schedule) which require a commissioner for oaths before taking oaths to satisfy himself
that the person named as the deponent and the person before him are the same. The requirement
makes the commissioner for oaths a potential witness, should any issue arise requiring his/her
clarification in court orally on what transpired before him as commissioner while administering oath.
That this goes against the standard rule in the case of R V. Secretary for State for India (1941) 2 ALL
ER 546 that: ‘It is trite law that an Advocate should not act as counsel and witness in the same case’’.
Read Ismail T/a Bombo City stores v. Alex Kamukama & Ors T/a Bazari (1992) 3 KALR 113 (SC-
U) 119
Inconsistencies, Contradictions in affidavits and legal consequences

In the case of Mugume vs. Akankwasa [2008] HCB 682 J. Stella Arach held that ‘inconsistencies in
affidavits cannot be taken lightly, and an affidavit containing falsehood is suspect and is bound to
fail’
In the case of Sempala vs. Najjumba HCMA NO. 2444 of 2016 held that there were major
discrepancies in the statement by the Applicant on oath which renders the contents of the affidavits
suspect and unreliable. That the law is that when an affidavit contains falsehoods, it will in most cases
be rejected by court. That where the affidavits are incurably defective, misleading and false; they
cannot be saved by the principles set out in cases like Saggu vs. Road Master Cycle (U) Ltd (2002) 1
EA 258 or Kiiza Besigye vs. Museveni Y.K & Electoral Commission (2001-2005) 3 HCB that; ‘Court
can rely on parts of an affidavit which are truthful and reject the parts which are false’.
Argumentative, prolix and affidavits constituted by irrelevant subject matter Hearsay in
Affidavits, disclosure of source of information, statement of grounds of belief
An affidavit should not contain hearsay evidence or be argumentative or attach unnecessary copies of
or extract from documents. (This is important when it comes to quality and admissibility of
affidavits)
issue of whether the affidavit of the applicant are argumentative, narrative and contain hearsay and
conjectures the Court cited Order 19 rule 3 of the Civil Procedure Rules and found that the affidavit
in support contains 94 paragraphs and the supplementary affidavit contains 67 paragraphs, the
affidavit in rejoinder contains 103 paragraphs and this makes a total of 264 paragraphs and held that
the length of the affidavits by itself is not the issue but found that the affidavits contents are
argumentative and prolix. That an Affidavit is meant to adduce evidence and not to argue the
application and that the affidavits of the applicant fall short of meeting this standard. They argue the
case instead of laying down the evidence to be relied on in deciding the application and that the
affidavit in reply suffers the same defect. That prolixity is defined in the Black’s Law Dictionary,
Ninth Edition at page 1331 as ‘The unnecessary and superfluous stating of facts and legal arguments
in pleading or evidence.’’ That in the case of Re: Bukeni Gyabi Fred HCMA 63/99, [1999] KALR
918 the Court in interpreting this rule held that the order is very clear. An affidavit should contain
facts and not arguments or matters of law. That in Rohini Sidipra vs Frey Sidipra & Ors HCCS
591/90, [1995] KALR 724 Mpagi Bahigeine J as she then was held: ‘I think I first desire to make an
observation about the applicant’s supplementary affidavit. It appears not to have been skillfully
drawn. It is prolix in the extreme. It contains 11 rather lengthy paragraphs covered on 7 pages. Much
of this is argumentative narrative, not strictly relevant to the application before me.’’ That the
learned judge quoted O.19 rule 3(1) of the CPR and said: ‘In this regard, the court has power to take
an affidavit off the file for prolixity or to order scandalous matter to be struck out of an affidavit. The
Registrar should not have allowed it on record. I proceed to strike it out.’’ The Supreme Court
approved the reasoning. Court further noted that under O.19 r 3 CPR, the deponent who makes the
argumentative affidavit which is incurable can be penalized by paying costs of the application. That
while there isn’t anything scandalous in the affidavits of the applicant, court found that they are prolix
and non compliant with O.19 r 3 CPR and strike them out. That the consequence of striking out the
affidavit is that there is no competent application before court since it is a requirement under R.43 of
the Supreme Court rules.
An affidavit which does not distinguish between facts based on information and belief and facts based
on knowledge is defective and may be rejected by court.
In the case of Standard Goods Corp ltd vs. Musa Harakchand [1950] 17 EACA 9 the EACA held
that facts can be within a person’s knowledge in two ways; by his /her own physical observation or
by information given to him /her by someone else. Where an affidavit is made on information it
shouldn’t be acted upon by the court unless the sources of information are disclosed.
S.C Election Petition No.1/2001 Odoki CJ (as by then) referring to the case of Paulo K. Ssemogerere
and Z. Olum v. A.G Constitutional Petition No. 3/1999 whereof the Court of Appeal distinguished the
case of Nassand & Sons (Uganda) Ltd vs. East African Records (1959) EA 360, Standard Goods
Corporation Ltd vs. Harakchand Nathu 7 Co. (1950) 17 EACA and Aristella Kabwimukya vs. John
Kasigwa (1978) HCB which concerned interlocutory applications. The Court pointed out, that a
constitutional petition is not an interlocutory application. Therefore an affidavit in support of it must
be restricted to facts the deponent is able of his own knowledge to prove and not facts based on
information and belief. That an affidavit based on information given to the deponent by someone else
is hearsay and inadmissible to support the petition
In the case of Kakooza Jonathan & Anor vs. Kasaala Co-operative Society Ltd SC Application
No. 13/2011 Tumwesigye JSC on the issue whether the affidavit was argumentative and offends the
law and should be struck out and whether it contained falsehood in that the deponent described
himself as a female adult of sound mind whereas he was a male adult Uganda. It was held that most
of the paragraphs complained about are statements of belief which he stated to have originated from
his former Counsel, and that other paragraphs are statements of facts within the knowledge of the
deponent. On the issue of falsehood, the deponent 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.
0610-2007Justice Lameck Mukasa stated that even if the deponent’s averment was based on his
belief founded on information, neither does he say so nor does he name the source of information.
That normally an affidavit contains a paragraph where it states what particular facts are true to the
knowledge of the deponent and what is stated as information believed to be true by the deponent.
That the ground of belief must be stated with sufficient particularity to enable the court to determine
whether it could be safe to act on the deponent’s belief. That an affidavit must disclose matters based
on the deponent’s knowledge and those base on belief. That an affidavit which fails to do so is
defective and cannot be relied upon.
In the case of Pacific Summit Hotel Ltd vs. DFCU Bank Ltd HCMA No. 9/2013 Justice Kawesa
Henry held that the law governing affidavits is O.19 r 3 is to the effect that; ‘Affidavits shall be
confined to such facts as the deponent is able of his or her own knowledge to prove, except on
interlocutory applications, on which statements of his /her belief may be admitted provided that the
grounds thereof are stated.’ The case of Premchard Richard vs. Quary Services Ltd (1969) E.A at 514
Spry J as then said; ‘It has repeatedly been said by this court that affidavirts based on information
must disclose the source of information (see Standard Goods Corp Ltd vs. Haralkchard Nabus & Co.
1950) 17 EACA) on this ground alone the judge would have been entitled to refuse to act on the
affidavit, this not merely a matter of form but goes to the essential value of the affidavit’
In the case of Nakiridde –V- Hotel International [1987] HCB 85 it was held that where an affidavit
contains matters of law, is argumentative and is irrelevant, it is then incompetent and should be struck
out.
In the case of Eseza Namirembe –V- Musa Kizito [1973] EA 413 which was a case by originating
summons, the application was dismissed among other reasons because the supporting affidavit did
not set forth the plaintiff’s means of knowledge or her grounds of belief and did not distinguish
between matters stated on information and belief and those deponed to on deponent’s knowledge.
In proceedings which finally determine the matter in dispute only affidavits based on deponents
knowledge should be acted upon thus in Paul K. Semwogerere & Zachary Olum vs. A.G Const. Pet.
No. 3/1993, the constitutional Court of Uganda (per Berko J.A) held that; ‘Except for purely
interlocutory matters, affidavits must be restricted to matters within the personal knowledge of the
deponent. They must not be based on information or be expression of opinion. Affidavits should be
strictly confined to such facts as the deponent is able of his/her knowledge to do. Affidavits by
persons having no personal knowledge of the facts and merely echoing the statement of the claim
cannot be used at the hearing. The constitutional petition isn’t an interlocutory application therefore
an affidavit in support of it must be restricted to facts the deponent must be able to prove.
Applicability of Article 126(2) (e) to Affidavits

In appropriate cases, the court has discretion to exclude hearsay matters and sever the defective or
superfluous part of an affidavit and act on the rest.
In Besigye Kizza vs. Museveni, Odoki CJ observed at page 24 that there is a general trend towards
taking a liberal approach in dealing with defective affidavits, this is in line with the constitutional
directive in Art. 126 of the 1995 constitution that the courts should administer substantive justice
without regard to technicalities. Rules of procedure should be used as handmaids of justice but not to
defeat it.
0610-2007Justice Lameck Mukasa held that court has wide inherent powers under section 98CPA to
administer justice. See also Art. 126 (2)(e) of the constitution. Considering the nature of the
applicant’s claim in the main suit and interest still shown it would be injustice to shut the applicant
without considering the merits of its application. That administration of justice requires that all
substances of dispute shall be heard and decided on merit. That in view of the above, that he is
inclined to allow the application.
In the case of Pacific Summit Hotel Ltd vs. DFCU Bank Ltd HCMA No. 9/2013 Justice Kawesa
Henry stated that he was alive to the current practice where courts have since the supreme court
decision in Kizza Besigye vs. Museveni and the provisions of Art. 126 of the constitution relaxed this
position to allow parties sever parts of the affidavits found offensive in the name of substantive
justice as discussed by Lugayizi J in Italian Ashal thaulage Ltd & 2 Ors vs. Assist (U) Ltd CA No.
90/2000, however that this practice is distinguishable from the circumstances of this application
where there was total failure to conform to the rules making it impossible for the court to save the
affidavit. That in the affidavit the deponent states in paragraph 1 that he is the managing director of
the applicant hotel, and deponed in that capacity, however later he deponed to facts within specialty
of the bank. He deponed to matters within specialty of law. That the affidavit is incurably defective
and cannot be allowed to stand.
In the case of Joel Kato & Anor vs. Nuulu Nalwoga HCMA No. 040 of 2012 the Court held that
while some paragraphs contain hearsay evidence, this alone cannot result in the whole affidavit being
discarded. That the position adopted by Tsekooko JSC in Rtd. Col Kizza Besigye vs. Yoweri Kaguta
Museveni & the Electoral Commission SC Presidential Election Petition No. 1 of 2006 where it was
stated: ‘Even if some paragraphs [in the affidavit] might contain hearsay matters and even if the
deponent did not specify the source of certain information contained in the affidavit, those were not
sufficient grounds for a whole affidavit [to be declared] a nullity.’’
issue whether the court can substitute an undated affidavit, reference was made to the case of Saggu
vs Road master Cycle (U) Ltd (2002) 1 EA 258 where court held that: ‘a defect in the jurat or any
irregularity in the form of the affidavit cannot be allowed to vitiate an affidavit in view of Article
126(2)(e) of the constitution and that a judge has power to order that an undated affidavit be dated in
Court or that the affidavit be re sworn, and may penalize the offending party in costs.’’ That despite
the fact that this is a court of appeal case; the Supreme Court found its decision persuasive and is
good law. That the case of Kasaala Growers Co-operative Society vs Kakooza Jonathan & Anor
SCCA No. 19 of 2010 draws a clear distinction between an affidavit which is defective and one
which does not comply with the requirements of the law. That the one which is defective is curable
and one which does not comply with the law is curable. That an affidavit which is undated is
defective but one that can be cured. One way of curing such an affidavit is by way of allowing the
affidavit to be dated as was held in the case of Saggu vs Road master Cycles (u) Ltd (2002) 1 EA 258.
That in dealing with a defective affidavit, the case of Hon. Theodore Ssekikubo & 3 Others vs The
Attorney General & 4 Ors Constitutional Application No. 08 of 1998 where it was held that: ‘…a
general trend is towards taking a liberal approach in dealing with defective affidavits. This is in line
with the Constitutional directicve enacted in Article 126(2)(e) of the Constitution…Rules of
procedure should be used as handmaidens of justice but not to defeat it.’ Court held that while the
affidavit in reply filed by the respondent on the 7th December, 2018 was defective in that it did not
bear a date, it was curable and the filing of the subsequent affidavit that was dated and sworn by the
same deponent on the 11th December, 2018 cured the defect.
Pre-entry Exam
2014/2015
Qn. 44. In your own words, describe an affidavit.
2015/2016
Qn. 40. What is the relevance of a Commissioner for Oaths in litigation?
Topic 3-Types of Judgments
TYPES OF JUDGEMENTS
Meaning, Pre-requisites of a Valid Judgment
Section 2 CPA defines Judgment to mean the statement given by the judge of the grounds of a decree
or order.
In order for a judgment to be valid, it must be announced by court of competent jurisdiction or a court
that is properly constituted. A judgment of court must be signed and dated by a judicial officer and
should ordinarily be pronounced in open court. O.21 r 3 (1) CPR requires that judgment pronounced
by the judge who wrote it shall be dated and signed by him or her in open court at the time of
pronouncing it.
In the case of Maniraguha Gashumba versus Sam Nkundiye CACA No. 23/2005 (2013) the Court
of Appeal held that a judgment must be signed and dated by a judge or a magistrate who wrote it, at
the time of pronouncing it. A judgment that is not signed and dated in accordance with O. 21 r 3 (1)
CPR is not judgment at all, and therefore invalid. That neither the oral evidence of the judicial officer
who wrote it nor certification could validate such unsigned judgment.
The rationale for signing and dating a judgment is basically to guarantee its authenticity and time for
appealing runs from the date of the judgment.
Judgment and Legal Effect

A judgment of a court of law is binding on the parties who must comply with it or be subject of
execution proceedings or other sanctions. It follows that once a judgment is pronounced by a court of
competent jurisdiction unless appealed or set aside must be complied with.
In the case of Re Howard Amani Little CACA No. 32 of 2006 it was held that a court order is an
order that must be complied with.
Hadkinson Vs. Hadkinson [1952] 2 ALLER 267-Failure to comply with a judgment constitutes a
contempt of court.
In the case of The Protector & Gamble Company vs. Kyobe James Mutisho & 2Ors HCMA No.
135/2012 Kiryabwire J as then he was, held that a party who knows of an order, whether null or valid,
regular or irregular, cannot be permitted to disobey it. It would be most dangerous for parties to a suit,
or their solicitors to themselves to judge whether an order was null and void, regular or irregular.
Such parties should come to the court and not take it upon themselves to such a question. The course
of a party knowing of an order which is null and irregular is plain. The party concerned should apply
to court that it might be discharged. As long as the court order exist, it must not be disobeyed.
Ordinary Judgment [the law, Procedure and Practice

Ordinarily a judgment should contain a brief fact of the case, issues, the resolution of issues by court
and the final orders of the court. O. 21 r 4 CPR provides that judgments in defended suits shall
contain a concise statement of the case, the points for determination, the decision on the case and the
reasons for the decision, and r 5 requires court to state its decision on each issue.
In the case of Liberty Construction Co. Ltd versus R.C Munyani & Co. Advocates HCMC No.
8/2011 Justice Madrama stated that in making judicial decisions there are certain guidelines to be
followed. The first guideline is provided for under O 15 CPR which deals with framing issues. That
issues arise when a material proposition of law or fact is affirmed by one party and denied by the
other. That as far as judicial decisions are concerned, judicial officers are also guided by O 21 CPR.
Contents of a judgment are provided for under O 21 r 4 CPR which provides that judgments in
defended suits shall contain a concise statement of the case, the points for determination, the decision
on the case and the reasons for the decision. That O 21 r 5 CPR provides that the court shall state its
decision on each issue or controversy.
Default by the Defendant

Depending on the nature of the claim, the conduct of the parties in filing and exchanging pleadings
and the procedure adopted by the parties in the commencement of the proceedings, it may not be
necessary to set down the suit for hearing, consequently any of the following judgments may be given
against the defendant in default without hearing;
i) Default Judgment [the law, Procedure and Practice,
a) If a party commences proceedings by way of summary procedure and the defendant fails to
apply for leave to appear and defend the suit within the period fixed in the summons, the
plaintiff is entitled to a decree for the sum claimed together with interest and costs against the
defendant-O.36 r 3 CPR. (See detailed notes on Summary Procedure Topic 1)
b) If the proceedings have been commenced by ordinary plaint and the defendant has failed to
file a defence as prescribed by O.9 r 1 CPR, the plaintiff is required to file an affidavit of
service of summons and the failure of the defendant to file a defence within the prescribed
time-O.9 r 5 CPR. In the case of Varley Alia vs. Alionzi John HCCS No. 157/2010 Justice
Madrama held that O 9 r 5 CPR is mandatory in that it requires the affidavits to prove two
things namely; service of summons and failure of the defendant to file a defense within the
time prescribed. The suit cannot proceed without an affidavit of service on the record as
envisaged by rule 5 of O9 CPR. Secondly that interlocutory judgment cannot be entered
unless there is compliance with rule 5 of the order. That in Uganda the requirement under O.9
r 5 CPR to file and affidavit of service upon the court record is mandatory requirement. That
service of summons under O5 CPR is also not satisfied by service of summons signed by the
registrar only. Certain items are meant to accompany the summons under O5 r 2 CPR.
c) Where the plaintiff claims a liquidated demand, the court may pass judgment for the sum
claimed in the plaint together with interests and costs-O.9 r 6 CPR.
d) Where there are several defendants the court may pass judgment and decree against those who
have failed to file a defense and execution may issue and hearing may proceed against the
defendants who have filed defences-O.9 r 7 CPR.
In the case of Twine Amos vs. Tamusuza James HCC Revision No. 11/2009 Justice Irene
Mulyagonja held that the operative phrase for entering judgment in O.9 r 6 CPR is ‘liquidated
demand’. Osborn’s concise law dictionary (17th edition, sweet & Maxwell) defines
‘liquidated’ as fixed or ascertained. According to Black’s law dictionary (6 th Edition) a
liquidated claim is an amount which has been agreed upon by the parties to the action, or one
that is fixed by the operation of the law.
In the case of Lloyds Forex Bureau vs. Securex Agencies (U) Ltd HCCS No. 358/2012,
Justice Madrama held that the plaintiff’s action is for a liquidated demand plus interest and
cost of the suit. That only claims for pecuniary loss or general damages require formal proof.
That this is however optional. That the plaintiff would have been entitled on a liquidated
demand under O.9 r 6 CPR. That O.9 r 6 applies to a plaint drawn and claiming a liquidated
demand where no defense is filed. The rule does not provide that it is applicable where the
plaintiff is claiming a liquidated demand only. That in Stroud’s Judicial Dictionary of Words
and Phrases Sweet and Maxwell 2000 edition defines the term ‘liquidated demand’ to include
an amount on a bill of exchange, definite interest on a contract or a statute, a sum certain in
money, a statutory demand for payment of a total debt or an amount due on a judgment.
e) Default Judgment against Government (AG)

Rule 6 of the Civil Procedure (Government Proceedings) Rules SI 77-1 provides 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 the
court, and any application for such leave shall be made by summons served not less than
seven days before the return day.
In the case of Agasa Maingi V AG HCCS No.0095/2002 an application by Chamber
Summons brought under rule 6 Civil Procedure (Government Proceedings) Rules and O.11 r 6
CPR for orders that judgment in default be entered against the respondent /defendant, in
alternative that judgment on admission be entered against the defendant/respondent. Justice
Katutsi held that rule 6 of the Civil Procedure (Government Proceedings) rules enacts 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
the application for such leave shall be made by summons served not less than 7 days before
the return day. That it was clear that the application was brought in court in conformity with
rule 6 of the Civil procedure (Government Proceedings) rule. That the Attorney General
though served did not appear in court. That on this ground alone the application would
succeed.
ii) Interlocutory Judgments
This applies in cases where the plaintiff is claiming for pecuniary damages which are not specific
or ascertained and or detention of goods. If a defendant fails to file a defense in such a case and
the plaintiff has filed an affidavit of service within provisions of O.9 r 5 CPR the court may enter
an interlocutory judgment against the defendant and set down the suit for assessment of damages
and the value of the goods. A final judgment and execution will issue in respect of the amount
found due by such assessment –O.9 r 8 CPR.
In the case of Lloyds Forex Bureau vs. Securex Agencies (U) Ltd HCCS No. 358/2012, Justice
Madrama held that O.9 r 8 deals with a claim or for detention of goods with or without a claim for
pecuniary damages. A claim for pecuniary damages is not a claim for a sum certain in money. It
is a claim for damages which may be assessed. That O.9 r 8 CPR permits the court to enter
interlocutory judgment against the defendant where there is a claim for pecuniary damages only
or detention of goods with or without a claim for pecuniary damages. This is where the defendant
fails to file a defense within the period prescribed in the summons.
In the case of Twine Amos vs. Tamusuza James HCC Revision No. 11/2009 Justice Irene
Mulyagonja held that though the D/Registrar entered the interlocutory judgment under a wrong
provision, realizing that the plaintiff’s claim was not liquidated proposed to set down the suit for
hearing, as would have been done had the interlocutory judgment been properly entered under O.9
r7 CPR. Therefore entering judgment under O.9 r 6 was only irregular and the irregularity was not
material one because thereafter the court followed the correct procedure when the suit was set
down for assessment of damages. That with regard to the complaint that notice of hearing was not
served upon him, O.9 r 10 lays down the general rule where no defense is filed. It provides that in
all suits that are not specifically provided for in O.9, in case the defendant does not file a defense
on or before the day fixed, upon filing an affidavit of service the of summons upon the defendant,
the suit may proceed as if that party had filed a defense. That the next step that should take place
in the suit is setting it down for hearing, i.e., if no judgment could be entered on the whole claim
without proof of it. In that regard O.9 r 11(1) applies for setting down the suit for hearing. That
notice of hearing of the suit is to be served on a party who has filed a defense, not on one who has
failed to file a defense as required by summons issued to him/her. That when he failed to file a
defense, the defendant opened the door for the plaintiff to proceed exparte in the suit which he did
under the provisions of O.9 r 11 (2) CPR.
In the case of Concern Worldwide vs. Mukasa H C Civil Revision No. 1/2013, Justice H. Wolayo
held that a default judgment is entered where there is proof of service and the defendant has not
filed a defense within the specified time. Rule 6 and 8 of O.9 CPR are relevant. That under rule 6,
where the plaint is for a liquidated demand, judgment will be entered for the sums claimed.
However rule 8 where the claim is for pecuniary damages, the rules requires that an interlocutory
judgment is entered and the suit set down for formal proof. That in the instant case, the claim was
for unspecified sums of money and for general damages for wrongful dismissal. That clearly there
was need for the respondent to adduce evidence for wrongful dismissal and for his entitlements
under the contract. That it was not up to the magistrate to interprete the contract when the plaintiff
had not specified what he was demanding in the plaint. That the magistrate erroneously entered a
default judgment when the correct entry should have been an interlocutory judgment.
Possibility of Obtaining both a default and Interlocutory Judgment in one suit

In the case of Lloyds Forex Bureau vs. Securex Agencies (U) Ltd HCCS No. 358/2012, an
interlocutory judgment was entered against the defendant by registrar indicating that the suit is set
down for formal proof upon failure of the defendant to file a defense. Justice Madrama held that
the plaintiff’s action is for a liquidated demand plus interest and cost of the suit. That only claims
for pecuniary loss or general damages require formal proof. That this is however optional. That
the plaintiff would have been entitled on a liquidated demand under O.9 r 6 CPR. That O.9 r 6
applies to a plaint drawn and claiming a liquidated demand where no defense is filed. The rule
does not provide that it is applicable where the plaintiff is claiming a liquidated demand only.
Consequently even if a liquidated demand is coupled with another claim, O.9 r 6 may attract
judgment upon default of the defendant to file a defense within prescribed time. That secondly
O.9 r 8 on the other hand deals with a claim or for detention of goods with or without a claim for
pecuniary damages. A claim for pecuniary damages is not a claim for a sum certain in money. It
is a claim for damages which may be assessed. That O.9 r 8 CPR permits the court to enter
interlocutory judgment against the defendant where there is a claim for pecuniary damages only
or detention of goods with or without a claim for pecuniary damages. This is where the defendant
fails to file a defense within the period prescribed in the summons. That in this case, the plaintiff’s
action is not for pecuniary damages only. It is a claim for a liquidated sum coupled with a claim
for pecuniary damages. That in Stroud’s Judicial Dictionary of Words and Phrases Sweet and
Maxwell 2000 edition defines the term ‘liquidated demand’ to include an amount on a bill of
exchange, definite interest on a contract or a statute, a sum certain in money, a statutory demand
for payment of a total debt or an amount due on a judgment. That there is judicial precedence to
the effect that a final judgment may be entered in respect of a liquidated demand and an
interlocutory judgment entered in respect of the claim for pecuniary damages claimed in the same
plaint. That this was held by Evershed LJ in the case of Abbey Panel & Sheet Metal Co. Ltd vs.
Barson Products (affirm) (1947) 2 ALLER 804 at page 810 where his lordship held that
judgment in default is entered for a liquidated sum while interlocutory judgment is entered in
respect of the claim for pecuniary damages. That the same reasoning was followed in the case of
NSSF vs. Kisubi High School C.S No. 440/2011. That this in a nutshell gives a right for a
plaintiff to proceed under 0.9 r 6 and 7 with regard to a claim for a liquidated damages and O 9 r 8
CPR in respect for a claim for pecuniary damages or detention of goods with or without a claim
for a pecuniary damages in the same plaint. In other words the plaintiff is entitled to judgment on
the liquidated sum and the proceedings for formal proof will only be for general damages.
iii) Exparte Judgments
This is a judgment given after the suit has been heard exparte. Where the time allowed for filing a
defense has expired and the defendant has failed to file his/her defense, the plaintiff may set down
the suit for hearing exparte-O.9 r 11(2) CPR.
In the case of Twine Amos vs. Tamusuza James HCC Revision No. 11/2009 the issue among
others was whether the trial court properly entertained the respondent’s suit exparte. Justice Irene
Mulyagonja held that O.9 r 10 lays down the general rule where no defense is filed. It provides
that in all suits that are not specifically provided for in O.9, in case the defendant does not file a
defense on or before the day fixed, upon filing an affidavit of service the of summons upon the
defendant, the suit may proceed as if that party had filed a defense. That the next step that should
take place in the suit is setting it down for hearing, i.e., if no judgment could be entered on the
whole claim without proof of it. In that regard O.9 r 11(1) applies for setting down the suit for
hearing. That notice of hearing of the suit is to be served on a party who has filed a defense, not
on one who has failed to file a defense as required by summons issued to him/her. That when he
failed to file a defense, the defendant opened the door for the plaintiff to proceed exparte in the
suit which he did under the provisions of O.9 r 11 (2) CPR. That O.9 r 11(2) does not require the
plaintiff to give notice to a defendant who has failed to file a defense. That the suit proceeds
exparte, that is in absence of the other party, the defendant.
Where both parties to suit have filed their pleadings but only the plaintiff appears and the
defendant does not appear when the suit is called for hearing, the court may order that hearing
proceeds exparte if it is satisfied that the summons or hearing notice was duly served-O.9 r 20(1)
(a) CPR.
In the case of Departed Asian Property Custodian Board vs. Issa Bikenya t/a New Mars Wear
House SCCA No. 18/1991 [1994-95] HCB 60, the defendant had filed a written statement of
defense denying liability, case fixed by consent of the parties but did not appear at the hearing.
The Supreme Court upholding the decision of the trial judge held that the learned judge properly
addressed her mind to the issue presented to her that the date of hearing had been taken by
consent and the registry would issue no further notice unless the hearing date taken by consent
was unacceptable to the court. It was then for the advocate to keep in touch with the registry,
follow the call over of cases for hearing, and proceed according to the consent date.
In the case of Fred Hereri vs. A.G HCCS No. 42/1995 summons to enter appearance were issued
to the defendant and filed a memorandum of appearance. A hearing date was fixed and duly
served to the defendant but the Commissioner, Civil litigation inscribed a note on the original
copy of the hearing notice. Below the note he appended his signature and title. The note read as
below;
‘Late service accepted. The service is late. We cannot prepare to come to mbarara to defend. We
need to requisition for money from Finance which cannot be done now. Let a new date be given
and communicated to us well in time for us to prepare’
It was held that if the note was intended for the court’s attention, then it was of no effect. That
court held in Byamani (Uganda) Ltd vs. L. Sserwanga, (1975) HCB 86 that seeking adjournment
by telephone, letter or note such as one in the instant case does not constitute an appropriate
method of applying for adjournment. An adjournment cannot be granted on basis of such a note.
That beside, from the time of entering appearance up to the date of service of relevant hearing
notice, 4 yrs had passed and the defendant had not filed any defense in the matter. The defendant
had effectively placed himself out of the court. A.G vs. Ssengendo (1972) E.A 356 and Ssebunya
vs. A.G (1980) HCB, 69. That in the circumstances an order granted for the case proceed ex parte
in accordance with O.9 r 17(a) CPR.
In all suits not otherwise specially provided for by O.9 in case a party does not file a defense
within the prescribed time and the plaintiff has filed an affidavit of service within the provisions
of O. 9 r 5 CPR, the suit may proceed as if that party had filed a defence-O.9 r 10 CPR.
Other judgments besides default by the defendant include;
iv) Judgment on Admission [ the law, Procedure and Practice
O.13 r 6 CPR provides that any party may at any stage of a suit, where an admission of facts has
been made, either on the pleadings or otherwise, apply to the court for such judgment or order as
upon the admission he or she may be entitled to, without waiting for the determination of any
other question between the parties; and the court may upon the application make such order, or
give such judgment, as the court may think just.
In the case of Central Electrical International Ltd vs. Eastern Builders & Engineers Ltd HCMA
No. 176/2008 an application by notice of motion brought under O13 r 6 CPR and S. 16-29
Evidence Act for orders by the applicant /Plaintiff that judgment on admission be entered against
the respondent/Defendant in favour of the Applicant/Plaintiff for US$48,598.79 and costs be
provided for. Justice Lameck Mukasa held that O.13 r 6 CPR 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 conveniently be disposed of on motion under this rule, the
court may exercise its discretion, refuse the motion. The admission can be in pleadings or
otherwise. But such admission must be clear and unequivocal. That the admissions which are
claimed to have been made by the respondent are contained in the respondent’s plaint filed in
HCCS No. 856/2005 where the parties were Eastern Builders and Engineers Ltd (Plaintiff) and
the Attorney General of Uganda(Defendant). That the instant suit was filed in February 2008. The
applicant is not a party to the suit where the alleged admission is made. That the admission upon
which judgment can be based should be made either on the pleadings or otherwise in the suit
before court. That he was strengthen by the holding of Justice CK Byamugisha in Sietco vs.
Impregico Salim J.V. HCCS No. 980/1999 wherein she stated; ‘In the instant case admission
which the defendant made are at an interlocutory stage and therefore satisfied the requirement of
‘at any stage of the suit’’’. That in the instance case the admissions upon which the applicant
based its application were not made at any stage of the suit but made in 2008 before the filing of
the suit and in another suit. That neither the pleadings not any of the documents filed by the
parties in this suit shows an admission of the applicant’s claim by the respondent.
The procedure for applying judgment on admission may be by oral application where the
admission is made in the course of the proceedings and a formal application by notice of motion
where the application is made by the pleadings
v) Consent Judgments, Compromises [the law, Procedure and Practice
O.25 r 6 CPR provides for compromise of suits. That where it is proved to the satisfaction of the
court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or
where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter
of the suit, the court may, on the application of a party, order the agreement, compromise, or
satisfaction to be recorded, and pass a decree in accordance with the agreement, compromise or
satisfaction so far as it relates to the suit.
In the case of Bank of Baroda (U) Ltd vs. Ataco Freight Services Ltd SCCA No. 45/2007 the
issue was whether a compromise within the meaning of O.26 r 6 was reached. Twinomujuni JA
held that the elements of a compromise within the meaning of O.26 r 6 CPR are as follows;
a) It must be lawful
b) The parties must agree to it
c) It must relate to issue in the suit
d) A decree must be passed in respect of the same
e) It must be recorded
That the proceedings did not amount to a compromise in law for the following reasons;
First what was agreed upon by the parties did not relate to the issues in the suit. The purported
compromise did not adjudicate on whether the applicant was liable to the respondent as claimed.
Secondly no decree was passed and recorded.
A consent judgment is only valid and enforceable if it is voluntarily executed by parties or by

their respective advocates duly instructed to consent.
In the case of Geoffrey Gateete & Anor. V William Kyobe SCCA No.7/2005 the respondent had
obtained a consent judgment against a business firm of three partners. Mulenga JSC held that
there was no legal support to a consent judgment where service was on one partner who then
submitted to the judgment to bind the other partners notwithstanding that those others knew
nothing about the suit and did not submit to the judgment.
Once a consent judgment is duly endorsed by court, it can only be challenged on any of the
grounds that would vitiate a valid contract.
In the case of George William Kateregga versus Commissioner Land Registration & Others
HCMA No. 347/2013 Justice Bashaija defined a consent judgment from the Black’s law
Dictionary (8th Edition) as ‘Consent Judgment-A judgment, the provisions and terms of which are
settled and agreed by the parties to the action’’.
‘Agreed Judgment’ which is analogous to ‘consent judgment’ is also defined in the same
dictionary as; ‘A judgment entered on agreement of the parties which receives the sanction of the
court, and it constitutes a contract between the parties to the agreement, operates as an
adjudication between them and when court gives the agreement its sanction, becomes a judgment
of the court’
That even if parties other than the applicants drafted consent judgment over the suit land which
was sanctioned by the court, it necessarily became judgment of the court. The effect was that the
applicant would be bound by it notwithstanding that he was not privy to the consent agreement or
suit, which renders the judgment in that case a judgment in rem. That a judgment in rem
invariably denotes the status or condition of property and operates directly on the property itself.
It is a judgment that affects not only the thing but also all persons interested in the thing, as
opposed to the judgment in personam which only imposes personal liability on a defendant.
However where judgment has been passed by a court of competent jurisdiction and the aggrieved
party appeals against the decision, it is not possible for the parties to legally execute a consent
whose effect is to reverse a judgment of the lower court.
In the case of Edith Nantumbwe & 3Ors vs. Kuteesa CACA No. 294/2013 held that a consent
judgment is basically an agreement between parties. It cannot grant to the parties powers which
they would otherwise not possess whilst making an agreement. Parties to a suit cannot legally
agree to direct a person who is not a party to the agreement or the consent judgment to do
anything he or she has not consented to do. That the commissioner of land registration has a right
to be heard. That since the agreement was entered into without the commissioner of land
registration being a party, and the consent affects him, it cannot stand on that ground alone. It is
therefore null and void in so far as it relates to all parties who are not signatory to that consent.
That parties to a suit cannot determine by consent issues of law and make declarations of law.
That the general rule is that this court or any appellate court will not allow an appeal to be settled
by consent. There is no law providing for consent judgment on appeal. That this proposition of
law is set out in Slaney vs. Keane [1970] Ch 243, where it was stated that; ‘An appeal of course
could be dismissed by the consent of the appellant thereby merely giving up his right of appeal
and the decision of the court or tribunal below is left standing. Under the general law an
appellate court will not allow an appeal by consent. If it were to do so, it would be making an
order holding that the decision below was wrong and it would be doing this merely on agreement
of the parties and without hearing the case.’ That in the case of Bulasio Konde vs. Bulandina
Nankya, court of Appeal Civil Appeal No. 7/1980 the learned justices of Appeal held, ‘The law as
enunciated in these cases shows that;-
1. The parties cannot by consent reverse a judgment of the court
2. Only an appellant court can reverse a decision of the court below after hearing an appeal
3. Issues of law cannot be subject to consent orders’
That since the withdraw requested by the parties would have the effect of reviving a consent
judgment in this court that is a nullity on account of an illegality, we decline to grant it.
In uncontested cases and cases in which the parties consent to judgment being entered in
agreed terms, judgment may be entered by the registrar.-O.50 r 3 CPR.
Topic 4
SETTING ASIDE OF JUDGMENTS AND DECREES
Effect of judgment
A judgment of a court of law is binding on the parties who must comply with it or be subject of
execution proceedings or other sanctions. It follows that once a judgment is pronounced by a court of
competent jurisdiction unless appealed or set aside must be complied with.
In the case of The Protector & Gamble Company vs. Kyobe James Mutisho & 2Ors HCMA No.
135/2012 Kiryabwire J as then he was, held that a party who knows of an order, whether null or valid,
regular or irregular, cannot be permitted to disobey it. It would be most dangerous for parties to a suit,
or their solicitors to themselves to judge whether an order was null and void, regular or irregular.
Such parties should come to the court and not take it upon themselves to such a question. The course
of a party knowing of an order which is null and irregular is plain. The party concerned should apply
to court that it might be discharged. As long as the court order exists, it must not be disobeyed.
Setting Aside of Judgment and Decree under Order 36 r. 11

O.36 r 11 CPR the court may set aside a decree of a default judgment in summary suit, if satisfied
that the service of the summons was not effective, or for any other good cause, which shall be
recorded, and if necessary stay or set aside execution, and may give leave to the defendant to appear
to the summons and to defend the suit, if it seems reasonable to the court so to do, and on such terms
as the court thinks fit.
In the case of Ali Ndawula & Anor. V R.L Jain HCMA No.0624of 2008, the applicant had filed an
application for unconditional leave to appear and defend a summary suit but the applicant and his
counsel did not turn up of the hearing of the application which was dismissed under O.9 r 22. The
applicant then brought an application by notice of motion under s.98 CPA, O.36 r 11 and O.52 r & 3
CPR seeking orders that the judgment or orders against the Applicant /1 st defendant be set aside, be
granted unconditional leave to appear and defend. Justice Lameck Mukasa held that under O.36 r 11
CPR a decree may be set aside for either (i) no effective service of the summons or (ii) other good
cause. That the applicant instructed his advocates to file an application on his behalf for leave to
appear and defend main suit but the lawyers did not inform the applicant for having date and did not
inform the applicant for the hearing date and did not attend court on the hearing date resulting into
dismissal of the application. That considering the reasons, the applicant had a good cause for his
failure to personally attend the hearing and he cannot be condemned for his counsel’s negligence.
That however in the case of Arocha vs. Kassim (1978) HCB 52, it was held that before setting aside
an exparte judgment the court has to be satisfied not only that the defendant had some reasonable
excuse for failing to enter appearance but that there is merit in the defense or in the case itself. This
holding was cited with approval in Senyange vs. Naks Ltd (1980) HCB 30. That it is not enough for
the applicant to merely deny that he owes money to the respondent. The affidavit in support seeking
leave to defend the suit the 2nd defendant admits being a guarantor to the transaction. The court cannot
keep a blind eye to the admission on record. That considering all the above, the application has no
merit to warrant its reinstatement.
Setting Aside of Judgments and Decrees under O.9 R.12

The marginal note to O.9 r 12 suggests that it is applicable to only setting aside only exparte
judgments. The rule itself empowers court that has passed the decree arising out of any judgment
entered pursuant to any of the proceeding rules to it aside on such terms as the court may deem fit.
It therefore follows that an applicant in an application to set aside judgment under O.9 r 12 must
satisfy the following;
i) A judgment sought to be set aside must be passed pursuant to the preceding rules to r. 12
namely; a default judgment under O.9 r 6&7, interlocutory judgments under O.9 r 8 and
exparte judgment under O.9 r 11(2).
It is therefore not correct to argue that only exparte judgments can be set aside under O.9 r 12.
ii) The applicant must also prove that he or she was prevented by sufficient cause from entering
appearance. O.9 r 12 is silent on the grounds of setting aside implying that the court has
unlimited and unfettered discretion to allow or disallow the application for setting aside .
Despite the absence of a specified ground for the application under O.9 r 12, the court is
guided by sufficient cause which is not defined by the rules but means any good reason that
prevented the applicant from filing a written statement of defense within a requisite time.
The applicant has to prove that he or she was not served with the summons or if they were
served the service was not effective and never got to know of the pending suit against him.
The burden of proof lies on the applicant to satisfy court that the reasons advanced constitute
sufficient cause to warrant setting aside of the judgment. The court normally considers the
conduct of the applicant before and after judgment and where there is a belated application the
court is normally reluctant to allow it.
iii) The applicant must also demonstrate to court that he or she has a defense that merits
adjudication through hearing. The intended defense must raise triable issues of law and fact
that merit adjudication.
In the case of Tweheyo vs. Barurengyera HCCA No. 11/2010 (2013), the appeal arose of of
the ruling and order by Grade I magistrate in which the trial court dismissed an application by
the applicant to set aside exparte judgment and have the suit heard on merit. It was held that
an application to set aside exparte judgment is governed under O.9 r 12 CPR. The rule
bestows on court wide discretion to set aside exparte judgment but in so doing the court must
be satisfied that to do so would meet the ends of justice given the circumstances of the case.
That the circumstances that warrant setting aside an exparte judgment are similar to those
under O.9 r 27 CPR. Firstly, court will usually set aside the exparte judgment where it is
proved that there has been no proper service. See Wamini v. Kirima [1969] EA 172, Koruta
vs. Mukairu [1978] HCB 215. Secondly, the defendant must demonstrate not only that he or
she was prevented by sufficient cause from filing a defense within the requisite period, but
also that there is merit in the case. See S.Kyobe Senyange vs. Naks Ltd [1980] HCB 31,
Nicholas Roussos v. Gulam H.H Viran, SCCA No. 3/1993, Nasaka Farmers and producers
Ltd v. Aloysius Tamale [1992-1993] HCB 203. In addition to the above, a defendant who
wishes to have an exparte judgment set aside should act reasonably and promptly and in the
event of delay in making the application, he or she should explain the reasons for such delay.
See Nicholas Roussos v. Gulam H.H Viran (supra). That in the instant case the trial court was
satisfied that summons could not be served in the ordinary way and ordered substituted
service instead. Based on the provisions of O.5 r 18(2) CPR, the appellant’s argument are
implausible that he was not duly served merely because the service was by way of substituted
service. There is nothing on evidence to show that the appellant could have been served in the
ordinary way. The trial court exercised its discretion and found that the circumstances of the
case merited service through substituted service. That as to whether the defendant had a good
defense to the case, no ground of appeal was advanced by the appellant that would be
canvassed along that argument.
In the case of Emiru Angose vs. Jas Projects Ltd HCMA No. 429/2015, an application by
Notice of motion under s. 34(1) and 98CPR, O9 r9 and O48 r 1& 2 and s.33 J.A for orders
that judgment passed exparte be set aside and applicant be allowed to file a defense for the
case to be heard on its merit, execution be set aside and the applicant be discharged from civil
prison. Among the issue was whether there was effective service of summons on the
applicant. Justice Kiryabwire held that the law to set aside such judgments is fairly well
settled now. In the case of Mbogo & Anor vs. Shah [1968] E.A 93 (CA) held that O9 r 9 gives
the high court unfettered discretion to set aside or vary an exparte judgment. The reason for
such a discretion appears to have been well articulated in the case of Henry Kawalya vs. J.
Kinyakwanzi [1975] HCB 372, where Sekandi Ag. J (as he then was) held; ‘An exparte
judgment obtained by default of defense is by its nature not a judgment on merit and is only
entered because the party concerned failed to comply with certain requirements of the law.
The court has the power to dissolve such judgment which is not pronounced on the merit of
the case or by consent but entered especially on failure to follow procedural requirement of
the law.’ That there was a procedural question as to whether there was effective service of
summons on the applicant. The rule of thumb here is that service of summons should be
effected on the defendant in person. Where it is not practicable, then service on the
defendant’s agent empowered to accept service. That in this case there was no service on the
defendant in person but rather on a receptionist who was not named. That in order to have
effected service upon the said receptionist, the receptionist could not only have to be agent of
the defendant but a recognized one at that within the meaning of O.3 r 1& 2. The evidence
before court does not suggest that service of summons on the applicant/defendant through
receptionist was that by way of an authorized agent as there is no mention of power of
attorney to that effect and there was no service.
Whereas the rule provides for parties aggrieved with the judgment or decree as having locus
to apply, that is not restricted to only parties to the suit but the rule may be invoked by the
third party who is equally aggrieved by the decree or order. A party is said to be aggrieved
legally where a decree affects that party’s legal or equitable interest in the subject matter of
the suit.
The action is brought by notice of motion with an affidavit together with summary of
evidence.
O.9 r 12 also extends to judgments entered by the registrar under the provisions of O.50 CPR.
Setting Aside of Ex Parte Decrees Under Order 9 Rule 27

O.9 r 27 allows a defendant against whom a decree has been passed exparte to apply to court that
passed the decree to set aside or otherwise vary the same on two grounds; 1. Non service of summons,
2. Any other good cause.
Setting aside under O.9 r 27 is invoked where the exparte decree arising out of an exparte judgment
which arises from proceedings under O.9 r 20.
The applicant must either prove non service of summons/hearing notice/sufficient cause which
connotes interalia mistake of counsel, negligence or omission, sickness of the parties or counsel.
The applicant must also demonstrate that other than the aforementioned reasons, that he or she has a
plausible defense that merit adjudication.
In the case of Al Hajji Abdi & Others versus Tropical Africa Bank HCMA No. 260/2006(2013), the
1st applicant/defendant commenced the application under the provisions of S. 98 CPA, O.9 r 24 and
O.9 r 26 CPR (before revision of the rules and O.9 r 27 after revision of the CPR) for orders that the
exparte decree/judgment entered against him is set aside and he is heard in defense to the suit.
Secondly that execution is stayed pending the hearing and disposal of application. The grounds set
out in the notice of motion are that the applicant was prevented from attending court when it ordered
the suit to proceed exparte by sufficient cause because he was out of the country on treatment. That
before he left the country, he had instructed lawyers but unknown to him they did not attend the court
at any time to execute his instructions. Justice Madrama held that service of hearing notice on an
adult member of the defendant’s family was meant to be service on the defendants who were in
Uganda. The applicant has proved that he was outside the jurisdiction together with other defendants,
therefore service of hearing notice has not been made in a manner provided for under O.5 CPR
(Kanyabwera vs. Tumwebaze [2005] 2 EA 86 SC. Secondly where someone is outside the jurisdiction
of the court, service has to be made outside jurisdiction under rule 22, 29 and 28 and not through
substituted service. That O.9 r 27 provides for setting aside of the exparte decree issued against the
defendant and perusal of the provision shows that the defendant may apply to the court which passed
the decree for an order to set it aside if the defendant satisfies the court that the summons were not
duly served. Secondly the defendant may satisfy the court that he was prevented by any sufficient
cause from appearing when the suit was called for hearing. That in the plaintiff’s case it may be
argued that the hearing notices were not duly served because the defendant was outside the local
limits of the jurisdiction of the high court being a resident in the UAE. There is strong evidence that
the respondent was receiving treatment outside the jurisdiction of the court at the time the suit was
ordered to proceed exparte against him and was outside for over three months. Secondly, in case court
is wrong on the question of service outside jurisdiction of the court of the hearing notice as opposed
to substituted service, the question is whether the applicant has shown any sufficient cause for failure
to appear at the time when the suit was called for hearing. That the conclusion of court is that the
applicant was ill and undergoing treatment in the UAE and was prevented by sufficient cause from
appearing in court within the wording of O.9 r 27 CPR. Thirdly as regards merit of the suit, the
question whether the plaintiff is responsible for failing to control the proper running of the staff
entrusted under his supervision and was therefore responsible for the financial loss was heard and
decided in the absence of the defendant’s defense. Lastly the issue whether the application was made
timeously, it was made within a period of 6 months within time. That the question whether the
applicant made the acknowledgement under duress or not is a triable issue and should be considered
after hearing his defense. The applicant will be given an opportunity to cross examine the plaintiff’s
witness and proceed with his own defense. Judgment and decree in the main suit set aside against the
applicant under O.9 r 27 CPR.
The application can be made where the execution is completed in which case the applicant can also
apply for setting aside that execution. Where the execution is pending, it is prudent to apply for stay
of execution as well as an interim order of stay of execution.
In the case of Kawooya vs. Naava (1975) HCB 314, an advocate was arrested prior to court hearing.
It was held that this amounted to sufficient cause under O.9 r 24 (now 27)
Distinction between O.9 r 12 and O.9 r 27 lies in the following;

i) It is only a defendant against whom a decree has been passed can apply under r 27 but not
to third parties
ii) The grounds for setting aside an exparte decree in rule 27 is specif and court’s discretion
is limited to those grounds while under r.12 are unlimited.
In the case of Forthill Bakery Supply Co. vs. Wangoe [1958] EA 118, Court discussed the
difference between O.9 r 12 and O.9 r 27 and held that O.9 r 9 (now 12) give the court
wide powers of discretion to set aside a judgment passed in pursuance of the proceeding
rules of O.9 i.e 1-8 or O.46 (now 50) and the reasons for setting aside such judgment are
unlimited. O.9 r 24 (now 27) on the other hand applies in any a case in which a decree has
been passed exparte against a defendant and the decree can be set aside only if the
defendant /applicant satisfies court that the summons were not duly served or that he or
she was presented by any sufficient cause from appearing when the suit was called for
hearing.
In the case of Nicholas Roussos vs. Gulam H.H Viran and 2 Ors SCCA No. 3/1993 it
was held that;
i) There are specific provisions in law governing applications to set aside exparte
judgments. These provisions are contained in rule 9 (now 12) and 24 (now 27) of
O.9 CPR
ii) There was sufficient authorities establishing the principles applicable to rule 9 and
24 and these authorities show that the principals applicable to the rules are
different.
iii) O.9 r 9 (now 12) gave the court unlimited or unrestricted discretion and in contrast
under O.9 r 24 (now 27) the applicant has to show sufficient cause for not
appearing. [See Patel v. E.A Cargo Handling Services (1974) and Sebei District
Administration vs. Gashali (1968) EA 300)
iv) As regards the principles upon which discretion under rule 27 may be exercised,
the courts have attempted to lay down some grounds or circumstances which may
be accepted as sufficient cause:
a) A mistake by an advocate though negligent may be accepted as sufficient
cause. [Shabin Din vs. Ram Parkash Anand (1955) 22 EACA 48
b) Ignorance of procedure by unrepresented defendant may amount to sufficient
cause [Zirabamuzale vs. Correct (1962) EA 694]
c) illness by a party may also constitute sufficient cause [Patel vs. Star Mineral
Water and Ice Factory (1961) EA 454
d) Failure to instruct an Advocate is not sufficient cause [Mitha vs Ladak (1960)
EA 1054]
v) The principles applicable to rule 12 and rule 27 of O.9 are clearly different and the
learned judge erred in holding that they were the same.
vi) Where the Plaintiff sets down the suit for hearing exparte under rule 8 or rule 8A,
and obtains judgment, the proper rule under which to bring an application for
setting aside the exparte judgment is rule 24. [See vs. Star Mineral Water and Ice
Factory (1961) EA 454, Zirabamuzale vs. Correct (1962) EA 694].
In the case of Departed Asians Property Custodian Board vs. Uganda Blanket
Manufactures [1973] Ltd (1982) HCB 119, held
i) Rule 9 (now 12) of O.9 CPR has a wider application than rule 24 (now 27) thereof.
Although marginal notes to it referred only to exparte judgment, it empowers a court to set
aside any judgment passed in pursuance of any of the proceeding rules of that order
whether judgment was exparte or not. Similarly the courts discretion is unlimited as to
reasons for setting aside judgment.
ii) O 9 rule 24 of the Civil Procedure Rules on the other hand I slimited only to exparte
decrees which court has mandatory powers to set aside where the party applying satisfies
court that the summons were not duly served or that he was prevented by any sufficient
cause from appearing when the suit was called for hearing.
iii) A reasonable approach to the application of these rules to any particular case would be for
the court to first ask itself whether any material factor appears to have entered into passing
of the exparte judgment which would not or might not have been present had the judgment
not been exparte, and then, if satisfied that such was or may have been the case, to
determine whether in light of all the facts and circumstances both prior and subsequent of
the respective the parties it would be just and reasonable to set aside or vary the judgment
if necessary upon terms to be imposed.
Setting Aside Consent Judgments

Generally a party to a consent judgment may in appropriate cases be aggrieved with the decision of
court if it was procured by fraud, misrepresentation, duress and undue influence or any other factor
vitiating a valid contract. The appropriate recourse is to proceed under s.98 by invoking the inherent
powers of court or apply for review and setting aside under O.46 CPR.
In the case of Matovu & Matovu Advocates vs. Uganda Electricity Generation Co. Ltd, The A.G
HCMA No. 0172/2010 Court stated that setting aside a consent judgment is not a simple task. Courts
are very reluctant to interfere with agreements or contracts freely entered into by the parties. A
consent decree is passed on terms of a new contract between the parties to the consent judgment and
so when the applicant argues that after recording a consent judgment the parties thereto cannot now
raise issues behind it i.e the question of representative order and that the instructions it cannot be
faulted. If any authority were required to support this point of law, the leading one is Brooke Bond
Liebig (I) Ltd vs. Mallya [1975] E.A 266 where court held that a consent judgment may only be set
aside for fraud, collusion or for any reason which would enable court to set aside an agreement.
In the case of Peter Mulira vs. Mitchel Cotts Ltd CACA No. 15/2002, a consent judgment had been
recorded and by ruling costs awarded to the respondent. Counsel for the respondent prepared a decree
but the appellant counsel refused to sign on ground that the appellant had never consented to a
judgment as entered by the learned trial judge. The trial judge ruled that the case had been settled by
consent between the parties. On appeal it was held that the law regarding consent judgment is that the
parties to a civil suit are free to consent to a judgment. They may do so orally before a judge who then
records a consent or they may do so in writing and affix their signature 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 ignorance of material facts. See Brooke Bond Liebig (I) Ltd vs. Mallya [1975] E.A 266.
That the issue to be recorded was whether there was a consent judgment properly recorded by the
learned trial judge. That the appellant had consented to the judgment as recorded by the trial judge. It
is a law (O.22 r 6 CPR) that before recording a settlement a judge must be satisfied that the parties
have agreed. In order to be satisfied the judge has to listen to what the parties say. When a party says
that he has disagreed and later says that he has now agreed, the judge takes the latter that there is a
change of mind and the party has agreed. In the circumstances the learned trial judge was right to
believe that the parties had reached a compromise. Not only the appellant’s counsel consented to the
judgment, but the appellant was present and participated in framing the terms of the settlement.
In the case of All Sisters Co. Ltd vs. Guangzhou Tiger head Battery Group Co. Ltd HCMA No.
307/2011, an application filed by notice of motion under s.98 CPA and O.52 r 1 & 3 CPR for orders
that a consent judgment be set aside on ground that it was procured through fraud and deceit. On a
preliminary objection about the procedure, Justice Madrama held that as far as citation of a wrong
law or wrong procedure in an application is concerned, the case of Saggu vs. Road master Cycles (U)
Ltd [2002] 1 EA 258, being a decision of court of appeal at Kampala, restated the law that wrong
procedure or wrong citation of law would not invalid proceedings if it does not go to jurisdiction or
cause prejudice to the opposite party. The general rule is that where an application does not cite any
law at all or cites a wrong law, but jurisdiction to grant the order sought exists, then the irregularity or
omission can be ignored and the correct law inserted. Substance of the dispute should be investigated
and decided on the merits and not necessarily debar a litigant from pursuit of his rights. S.98 CPA
which preserves the inherent powers of court to make such orders as meets of the ends of justice may
be invoked to arrive at justice in the circumstances of the case. The basic principle is that the opposite
party has been notified of the claim or matter brought against it and had an opportunity to respond
and defend it. That an application to set aside a consent judgment may be made by notice of motion
for review or it may be made by a plaint. Secondly that the grounds for setting a side a consent
judgment are set out in the case of Hirani vs. Kassam 19 (EACA) 131, the case was quoted by Law
Ag. P in the case of Brooke Bond Liebig (I) Ltd vs. Mallya [1975] E.A 266 at page 269; ‘the
circumstances in which a consent judgment may be interfered with were considered by this court in
Hirani v. Kassam (EACA) 19 EACA 131 where the following passage from Seton of judgments and
Orders, 7th Edition Vol, 1 page 124 was approved,
‘primafacie, any order made in the presence and with the consent of counsel is binding on all parties
to the proceedings or action, and on those claiming under them… and cannot be varied or discharged
unless obtained by fraud or collusion or by an agreement contrary to policy of court…or if consent
was given without sufficient material facts, or in misapprehension or ignorance of material facts, or
in general for any reason which would e3nable court set aside an agreement between the parties’’
That a consent judgment filed in court is a contract and its endorsement by court only gives it more
solemnity and backing of court process than an ordinary contract without seal of court. The fact that a
consent order remains a contract was held in the English case of Huddesfield Banking Co. Ltd v.
Henry Lister & Son Ltd (1895) 2 CHD. P. 273, Lindley L.J at 280;
‘I have not the slightest doubt that a consent order can be impeached, not only on the ground of
fraud, but upon any ground that would invalidate it. It is expressed in a more formal way than
usual…To my mind the only question is whether the agreement upon which the consent order was
based can be invalidated or not. Of course if the agreement cannot be invalidated the consent order
is good..’’
Topic V
THE TRIAL AND PRE-TRIAL PROCEDURES

The Powers and Roles of the Registrar-O.50 CPR.
Before a matter comes up for hearing, parties have to file a suit and must have exchanged their
pleadings in accordance with the Civil Procedure Rules. This involves activity on part of the court
like the issuing of summons and hearing notices and receipt of all documents the parties intend to rely
on in the prosecution or defense of the case.
Sometimes interlocutory matters may arise to be handled by the registrar. O.50 r 1 and 5 CPR
provides that whenever in the CPA or CPR or any Act of parliament or other law, it is provided that
any act, undertaking, inspection, proceeding or thing may be carried out or done before or by a judge
or commissioner or an officer appointed by the court, that act, undertaking, inspection, proceeding or
thing may be carried out or done before or by the registrar.
However under O.50 r 7 CPR the registrar may refer any matter to a judge for decision and the judge
may either dispose of the matter or refer it back to the registrar with such directions as he /she may
think fit.
The registrar has powers under O.50 r 2 to enter judgment in uncontested cases and cases in which
parties consent to judgment being entered in agreed terms.
All formal steps preliminary to the trial and all interlocutory applications may be made and taken to
the registrar-O.50 r 3 CPR. In the case of Gomil (U) Ltd vs. Latex (U) Ltd HCCS No. 196/90, it was
held that a registrar has jurisdiction to deal with and make orders in all interlocutory applications
including the granting of an interim injunction.
Interlocutory applications refers to all proceedings, applications or actions made during the trial of the
suit which do not determine and dispose of the matter in dispute finally but are necessary before
hearing or judgment of the suit. Examples include applications for service of summons, interim
orders etc.
The registrar is also responsible under O.50 r 4 for execution of court orders, judgments and decrees.
He can make a formal order for attachment or sale of property and issue a notice to show cause on
application for arrest and imprisonment in execution of a decree of the High Court.
When exercising powers under O.50 r 1, 2, 3 and 4, the registrar is regarded as a civil court-O.50 r 6.
This means that a decision is binding as if it was made by a judge of the High Court but there is a
provision for appeal to a judge if the party affected is dissatisfied. Under O.50 r 8, any person
aggrieved by an order of the registrar may appeal to the high court by notice of motion.
Where the registrar exceeds his jurisdiction of powers by acting in a manner not authorized by law,
any order or judgment made is a nullity in law and it cannot stand.
In December 2002 the Chief Justice of Uganda pursuant to O.50 CPR and in order to ensure
expeditious disposal of cases, issued Practice Direction No. 1 /2002 on judicial powers of registrar in
which the registrars were given more powers to entertain matters. In the case of Mohammed Kalisa
vs. Gladys Nyangire Karumu CACivil Reference No. 139/2013 held that Practice Direction 1 of
2004 is a case management tool to ease the work of justices of this court. It does not in any way
remove jurisdiction from them. Case management can be defined as a sequencing of proceedings
before a court with a view of ensuring that the cases are heard expeditiously, in most efficient and
cost effective manner within the existing rules of procedure. Examples of this will relate to matters of
filing, time frames, scheduling conference, alternative disputes resolutions, interlocutory applications,
discoveries and interrogatories to mention but a few. This may be done through rules as was done
under O 12 CPR or Practice Direction as in PD1 of 2004. That enhancement of judicial powers of
registrars started with Practice Direction No. 1 of 2002 (PD1 of 2002) affecting the Civil Procedure
Rules in the High Court. This had the effect of introducing rule 10 to O.50 CPR. PD1 of 2002
provided; ‘…pursuant to O.50 of Civil Procedure rules and in Order ensure expeditious disposal of
cases, the powers of the registrars shall include, but not limited to entertaining matters under the
following Orders and Rules..’’ That the purpose of the direction is to assist judges expedite the
hearing of the cases.
The registrars were given more powers to entertain matters under the following orders and rules;
a) O. 1 r 8-Obtaining leave of court to file a representative suit. Rule 14 notice to third party.
Rule 15 default appearance by third party. Rule 16 judgment against third party in default
b) O. 5 r 1(2)-Extension of time to effect service. Rule 3 dismissal for failure to serve. Rule 18
substituted service. Rule 22 service outside jurisdiction.
c) O.9 r 16 Suit dismissed upon failure to pay court fees. Rule 19 dismissal of suit where
summons unserved and plaintiff fails for a year to apply for fresh summons
d) O.13 r 6 judgment on admission
e) O.16 r 10 Procedure where witness fails to comply with summons. Rule 11 if a witness
appears, attachment may be withdrawn. Rule 12 procedure if a witness fails to appear. Rule 13
mode of attachment.
f) O.17 r 2 procedure where no application is made to restore a suit adjourned generally. Rule 5
dismissal of suit for want of prosecution. Rule 6 Suits may be dismissed if no step is taken for
2 years.
g) O.23 Attachment of debts. The entire order
h) O. 25 Withdrawal and adjustment of suits-The entire Order
i) O.26 Security for Costs. The entire Order
In the case of Royal Group of Pakistan vs. Mavid Phamaceuticals Ltd HCMA No. 498/2012
Justice Madrama held that the power of the registrar to hear applications under order 26 was
conferred by the Judicial Powers of Registrars [Practice Direction number 1/2002] issued by the
Chief Justice. Rule 9 of the Practice Direction confers jurisdiction on registrars to hear the whole
of order 26 on security for costs. Originally applications under order 26 were handled by judges
of the High Court.
j) O.33 Suits by paupers. The entire order
k) O. 40 Arrest and attachment before judgment
l) O.52 r 2 Notice to parties
It is the duty of the registrar to review all pleadings submitted for filing in court. If the pleadings are
not properly drafted the registrar may reject them. If they are properly drafted they will be endorsed
and sealed by the registrar in the space provided after the signature of the advocate or the party if
he/she is suing or defending in person. A copy of the pleadings is then put on the court file and the
other sealed copies are returned for service upon parties. For cases that are properly filed the
pleadings are put in a folder file and the registrar allocates them to judges for hearing. The registrar
keeps a registrar allocation book to ensure that there is equitable distribution of cases among the
judges. All judges are competent to handle any dispute referred to court. Parties are not allowed to
demand that their cases be placed before a particular judge, but they may object to a particular judge
hearing their case for sufficient reasons.
In each year a court is in vacation from 15 th July to 15th August and from 23rd Dec to 7th Jan. During
this period the court does not sit to hear any civil case other than those found to be of an urgent nature
in the opinion of the presiding judge. (See the Court Vacation (amendment) Rules 1994 S.7 No.
187/94
It is also the duty of the registrar to act as a taxing master. After judgment is delivered and an order is
given for costs, the party awarded costs drafts and files a bill of costs which is served on the opposite
party together with a taxation hearing notice notifying the party that the bill will be taxed on a given
date. On the date for taxing the parties may consent to items in the bill or amount to be paid or they
may fail to agree and adopt to lead evidence to prove or disprove the costs.
The registrar also oversees the court bailiffs and auctioneers as they carry out their duties. Once a
bailiff has lodged an application for a warrant of execution, it is the duty of the registrar to scrutinize
the application to ensure that the items to be attached and sold in the execution of the decree are
attachable and belong to the judgment debtor and are actually equal to the amount being claimed.
Court bailiffs are mandated to file returns explaining how execution was carried out. In the case of
Famous Syco Agency vs. M.R. Carrier & Anor H.C.C.S No. 88/92, it was held that a registrar acts
as a court in execution proceedings. He/she has powers of supervision over court bailiffs and may
legitimately intervene in execution proceedings. Where a decree is against several judgment debtors
severally and not jointly, the registrar should make a formal order detailing which judgment debtor
pays what and by what method.
All proceedings, orders and judgments are registered and kept in the registry which is overseen by the
registrar. The notices, orders and judgments written by judge or registrars constitutes official records
in respect of each case.
Registrars also act as accounting officers of the court. They are required to have custody of and keep
accounts of all fees and fees paid into the court and expenses incurred by the court. They are required
to submit from time to time the books of accounts of the court to the controller and the Auditor
general who then forwards the money to the secretary to the treasury-O.50 r 9 CPR.
Registrar also receive correspondences on behalf of judges. All letters to judges are addressed to the
registrar. You can’t write directly to the judge. Registrars also answer queries from the public and on
behalf of the judges and the court generally, they act as PROs.
Mediation-
Mediation became a permanent feature at the Commercial Court with the passing of the Judicature
(Commercial Court Division) (Mediation) Rules, 2007. Following the success story at the
commercial court, it was decided to roll out mediation at all the courts with the getting of the
Judicature Court Mediation rules S.I No. 10 of 2013
Mediation is now a permanent feature in all civil court processes. It is a rollout of Alternative Dispute
Resolution (ADR) from the High Court Commercial Division to other courts and dispute resolution
bodies within the JLOS sector. ADR is a mediation process that allows parties to a dispute find a
quick solution with the assistance of a neutral third party, without going through the costly and length
court process.
Originally piloted in the commercial court, ADR is now being rolled out to the High court Divisions
of Civil, family, land and magistrate court. ADR services will be available in the other JLOS dispute
resolution bodies like the industrial court, judicial service commission, Uganda Human Rights
Commission, the law council, the Directorate of Civil litigation, Uganda Law society and the office
of the Administrator General.
Cause listing of Cases and Service of Hearing Notices

Preparation of cause list is one of the administrative roles of the registrar. A cause list is a weekly
court rooster indicating particulars of cases before the court, the hearing days and the dates and the
names of presiding judges of each week. Every judge and registrar is assigned a clerk to keep records
of all official transactions and correspondences including particulars of cases allocated. In addition
each judge or registrar is also given a diary in which particulars of cases and their hearing dates are
indicated.
Before fixing or adjourning any case the judge and his clerk have to consult this diary and the court
programme to identify an appropriate date. There’s also a court diary or computer data base where
particulars of cases and their hearing dates and other activities of court are indicated. Towards the end
of each week the registrar in consultation with the clerk, judges and heads of division or circuits of
the high court prepares a cause list for the following week in respect of each division / circuit.
There are several civil law divisions of the High Court namely; Civil, Commercial, Land, Family,
Execution. There are also circuits of the High Court namely Mubende, Jinja, Mbale, Soroti, Gulu,
Arua, Fortportal, Mbarara etc.
The typed cause list is signed by the principal judge/head of division or circuit/ registrar. A copy of
the cause list is pinned on the court notice board, sent to all judges, registrars of court and other senior
officials of the judiciary. Any person can obtain a photocopy of the cause list from the registry. In
practice some cause lists are sent to email address of members through the Uganda law society.
After the parties have filed and exchanged all the necessary court documents, the court file will be
allocated to a judge to take over and conduct a trial to the end. In practice the plaintiff makes sure that
the file is allocated to a judge, takes out hearing notice and serves it to the defendant notifying him or
her of the dates and time of trial. A hearing notice is summon of court, it must be dated, signed and
sealed by the court and indicate the date and time of the hearing and it should indicate the purpose,
whether the suit is coming for mention or for hearing or scheduling. The hearing notice must be
served in a manner prescribed for service of summons. See Edison Kanyabwera vs. Pastori
Tumwebaze.O.9 r 11(1) provides that where pleadings are closed the plaintiff is required to set down
the suit for hearing by extracting hearing notices and serving such notices on the other party.
The essence of service is to ensure that parties are heard and no one is condemned unheard because
hearing is a constitutional right under Art. 28(1) of the constitution. See Tommy Otto vs. Uganda
Wildlife Authority HCCS No. 208/2002.
If the plaintiff does not do so, the defendant may take out a hearing notice and serve it on the plaintiff
or he may write a letter requesting the registrar to dismiss the suit for want of prosecution. The suit
may also be set down for hearing by consent of all the parties. Counsel for the parties agree on the
date for hearing which is entered in a consent form which is filed in court. A suit may also be set
down for hearing by the court after the pretrial process is concluded. Courts take an interventionist
role to check delays. The judge can fix a case for mention and notify the parties or their advocates.
During mention the judge and parties brain storm generally about the case, its strength and weakness
and main arguments of both sides and explore the possibility of an amicable settlement without the
formal intervention of the court. The judge gives the parties an option and time for them to decide
whether to settle the matter between themselves amicably or to proceed with court action. If the
parties fail to agree the case will proceed into a formal stage known as scheduling conference.
Scheduling Conference, Scheduling Memorandum and Framing of issues

The scheduling conference is a meeting where the parties with assistance of the court do set out areas
of agreement and disagreement leaving the contentious issues for the actual hearing. The main
purpose of the scheduling conference is to give an opportunity of settlement.
Before formal hearing of the case, the judge is required by law to hold a mandatory scheduling
conference within 28 days from the date when the last reply was filed in court to sort out points of
agreement and disagreement, possibility of mediation, arbitration and any other form of settlement-
O.12 r 1(1) CPR.
In the case of Stanbic Bank (Uganda) Ltd vs. Uganda Cros Limited SCCA No. 4 of 2004, Tsekooko
JSC explained that the scheduling conference was introduced by the new Order XB of the CPR.
Because of the rule (1) of that order, a trial court is expected to hold a scheduling conference to sort
out points of agreement and disagreement, the possibility of mediation, arbitration and any other form
of settlement. Because the central issue in this case is reconciliation of figures, at the scheduling
conference stage parties should have produced properly audited accounts of the respondents as part of
the expert evidence and try to narrow down points of disagreement. That is the stage when proper
issues would emerge and parties and the court would settle the real issues to be tried and determined.
In the case of Tororo Cement Co. Ltd vs. Frokina International Ltd SCCA No. 2/2002 Tsekooko
JSC held that under the new Order XB of the CP Rules, the holding of a scheduling conference in
civil cases is mandatory. See rule (1) thereof. 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 assessing the possibility of mediation, arbitration and other forms of settling the
suit. 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. The holding of the scheduling conference will be a regular feature in the trial
of the civil cases by all trial courts.
However there is no scheduling conference on appeals. In the case of Kassim Dungu vs. Nakato
Nuliat & Anor HCCA No. 72/2002 it was held on the issue of holding a scheduling conference in
appeal that holding a scheduling conference under the Civil Procedure rules are to be conducted by
the trial courts in trial of civil cases as opposed to when they are sitting as appellate courts.
Effect of failure to hold scheduling conference and framing issues

Failure to hold a scheduling conference and frame issues is an irregularity but not fatal as long as the
parties at the trial know what the real question between them is, evidence is taken on it and court duly
considers it.
In the case of Peter Mulira vs. Mitchell Cotts Ltd CACA No. 15/2002 Kitumba JA held that while
court appreciates that no scheduling conference was held as required by law and no issues were
framed as required by law and no issues were framed, this did not prejudice the appellant in any way.
He freely consented to the judgment whose terms were according to the record, carefully drafted by
the parties.
Where the parties reach an agreement orders shall be made as under Order 15, rule 6 and 7-012 r 1(2).
Where parties do not reach an agreement, the court may if is of the view the case has a good potential
for settlement, order alternative dispute resolution before a member of the bar or the bench, named by
the court which shall be completed within 21 days after the order except time may be extended not
exceeding 15 days on application to the court, showing sufficient reasons for the extension. -O.12 r 2
& 3.
All interlocutory applications not otherwise expressly provided for in the CPR must be filed within 21
days from the date of completion of the ADR or within 15 days after completion of the scheduling
conference if no ADR; that date shall be referred to as the cutoff date. The application must be served
on the opposite party within 15 days from the date of filing and the reply to the application to be filed
within 15 days from the date of service of the application and be served on the applicant within 15
days from the date of filing the reply–O12 r 3CPR. Examples of interlocutory applications include
security for costs-O23 r 1 CPR and Third Party notice –O 1 r 14 CPR.
The scheduling conference is used for resolving procedural and evidential matters, making trial
arrangements and ensuring that the parties have complied with the relevant legal requirement. As
agreements may be reached at the scheduling conference, judges requires that other than advocates
instructed in the case, the parties or their representatives who can make binding decisions should
attend the scheduling conference.
At the scheduling conference, counsel for the plaintiff begins with an opening statements which
summarizes his/her client claim against the defendant. Counsel for the defendant may also reply
briefly to the statement made by the plaintiff’s counsel. Both counsel then state the agreed facts and
documents to the judge who records the same. Issues are then framed from the disputed facts or law.
Counsel are required to inform the judge about the documents and witness they intend to call and rely
on to prove their case. Documents which aren’t disputed or contested may be tendered in as exhibits
at this stage. These do not have to be proved when leading witness but there should be a connection
between them and evidence adduced.
In the case of Administrator General vs. Bwanika James & Ors SCCA No. 7/2003 Tsekoko JSC
held that the scheduling conference must be held in accordance with the requirements of OXB r 1
CPR. That rules 6 and 7 of Order 13 empower court to interalia frame issues on agreed matters and
enter judgment after due trial. That these provisions enable parties agree on non-contentious evidence
such as facts and documents. The agreed facts and documents thereafter become part of the evidence
on record so that they are evaluated along the rest of the evidence before judgment is given. Indeed in
as much as they are admitted without contest, the contents of such admitted documents can be treated
as truth, unless those contents intrinsically point to the contrary, and if they are relevant to any issue,
their admission disposes of that issue because the need for its proof or disproof would have been
disposed of by fact of admission.
In practice, court may order parties to file a joint scheduling memorandum instead of appearing to
conducting a conference before a judge.
Framing of Issues
Issues generally flow from the pleadings filed by the parties and the parties may frame issues in
accordance with the provisions of O.15 CPR with the guidance of court.
O.15 r 1 provides that issues arise when a material proposition of law or fact is affirmed by one party
and denied by the other. Material propositions are those propositions of law or fact which a plaintiff
must allege in order to show a right to sue or a defendant must allege in order to constitute a defense.
Each material proposition affirmed by one party and denied by the other shall form the subject of a
distinct issue.
There are two kinds of issue. Issues of law and issues of fact. O.15 r 1(5) provides that at the hearing
of the suit court shall after reading the pleadings, if any, and after such examination of the parties or
their advocates as may appear necessary, ascertain upon what material proposition of law or fact the
parties are at variance, and shall thereupon proceed to frame and record issues on which the right
decision of the case appears to depend.
In the case of Kahwa & Anor vs. UTC (1978) HCB 319 it was held that;
i) The framing and settlement of issues is governed by O13 (now 15) CPR. An issue is said
to arise when a material proposition of law or fact is affirmed by one party and denied by
the other. Material propositions are those propositions of law or fact which the plaintiff
must allege in order to show a cause of action or the defendant to constitute a defense.
ii) Although issues generally arise out of pleadings, issues may also arise out of the evidence
adduced by the parties at the trial since under O 13 r 3 CPR court may frame issues from
allegations made on oath by the parties or persons or advocates on their behalf in
additional to being framed from pleadings or contents of documents produced by either
party
The court may at any time before passing the decree amend the issues or frame additional issues on
such terms as it thinks fit, and all such amends or additional issues as may be necessary for
determining the matters in controversy between the parties shall be made or framed-O.15 5 (1). The
court may also at any time before passing the decree strike out any issues that appear to it to be
wrongly framed or introduced-O.15 r 5(2). Where a court amends issues, which parties had agreed
upon, it is necessary to give the parties the right to adduce further evidence or address the court on
amended issues to ensure that the rules of fair trial as per the constitution are complied
In the case of Jovelyn Barugahare vs. Attorney General SCCA No. 28/93 per Manyindo C.J held
that;
i) From reading of the provisions of O13 rules 1(5) & 4, it’s clear that issues are to be
formed by court after consultations with the parties or their advocates at the beginning of
the trial. The trial judge is not bound by those issue, on the contrary the judge may amend
the issues, strike out some of them or even add new ones any time before passing the
decree
ii) A trial court may frame issues on points not raised in the pleadings but arising from
matters stated by the parties or their advocates on which a decision is necessary in order to
properly determine the dispute before the court.
iii) Where the trial court amends the issues it may be necessary to give the parties the right to
adduce further evidence and converse on new issues by way of submission before a
decision is made on them.
In the case of Oriental Insurance Brokers Ltd vs. Transocean (U) Ltd SCCA No. 55/1995 Order
JSC held that under O.13 of the CPR a trial court has the jurisdiction to frame, settle or determine
issues in a suit. At least two consequences appear to follow from the provisions of O.13 r 1(5), 3
and 5(1) of the CPR. Firstly, atrial court has wide discretion to frame or amend issues from all
materials before it, including pleadings, evidence of the parties and submission from counsel.
Secondly, the court may amend the issues or frame additional issues at any time including during
judgment. In doing so, the court may impose such terms as it thinks fit.
The judge will then fix hearing date convenient to both parties and the court when the actual
hearing commence.
Preliminary Objections
As a general rule where pleadings disclose a case which court is satisfied will not succeed, court
should strike it out or dismiss it altogether and put a summary end to litigation to save court’s time
and the costs involved in litigation. These can be on courts own initiative or following an application
by any party to the proceedings. This application may be formal or informal referred to as preliminary
objection.
Preliminary objections by their very nature should be raised at the commencement of proceedings
since it is proper to bring to the notice of court an alleged irregularity which must be cured before
hearing a case. The preliminary objections can be raised at the commencement of the trial whether
pleaded with in a WSD or not.
O.6 r 28 Points of law may be raised by pleading. Any party to a suit is entitled to raise by his or her
pleadings any point of law, and any point so raised shall be disposed of by the court at or after the
hearing except by consent of the parties or order of court on application by either party a point of law
may be set down for hearing and disposed of at any time before hearing.
In the case of Tororo Cement Co. vs. Frokina International Ltd SCCA No. 2/2001 Tsekooko JSC
stated and held as follows;
‘‘I start with the contention by the plaintiff that because the written statement of defense did not
indicate that the defense would raise a preliminary point of objection, it was therefore not proper
for the objection to be raised as a preliminary point whether a plaint does or does not disclose a
cause of action is a matter of law which can be raised by the defendant as a preliminary point at
the commencement of the hearing of the action even if the point had not been pleaded in the
written statement of defense. Obviously it is proper and good practice to aver in the opposite
party's pleadings that the pleadings by the other side are defective and that at the trial a
preliminary point of objection would be raised. But failure to so plead does not in my opinion bar
a party from raising the point. There is, of course, advantage in raising a likely preliminary point
in the pleadings. This puts the opposite party on notice so that that party in minded to put its
pleadings in order before court hearing. In that way Court's time may be saved if parties can sort
out preliminary matters in advance’’
Where issues both of law and facts are in the same suit and court is of the opinion that the case or any
part of it may be disposed of on issues of law only it shall try those issues first and for the purposes of
it may postpone the settlement of issues of fact until after the issue of law have been determined.
Under O.6 r 29 If in the opinion of court the decision of point of law substantially disposes of the
whole suit or any distinct cause of action, ground of defense or setoff, counter claim or reply therein
court may dismiss the suit or make such order in the suit as may be just.
Any party to a suit may apply to strike out any pleading on the ground that it discloses no reasonable
cause of action or answer or that the suit or defense is frivolous or vexatious-O.6 r 30.
O.6 r 17 and Art. 126 of the 1995 constitution of Uganda prohibits raising of technical preliminary
objections to any pleading on ground of alleged want of form or otherwise.
In the case of Kasirye Byaruhanga & Co. Advocates V UDB S.C.C.A No. 2 of 1997 (unreported)
where it was held that
“...a litigant who relied on the provisions of article 126(2) (e) must satisfy the court that in
circumstances of the particular case before the court it was not desirable to have undue regard to a
relevant technicality.”
Under O.7 r 11 a plaint shall be rejected where it does not disclose a cause of action or where the suit
is barred by any law or is shown by the plaint to be frivolous or vexatious.
As a general rule preliminary objections are decided on the basis of pleadings and facts not disputed
without the necessity of calling evidence. Thus in Western Steamship Co. Ltd vs. Amaral Sutherland
Co. Ltd [1914] II K.B 55 it was held that an order for a trial of a preliminary point of law should not
be made where there are facts in dispute and if made may be set aside.
In the case of Ismail Serugo Vs. KCC & A.G SC Const. App No. 2/1998, Justice Order JSC at page
23 of his ruling observed that;
‘’The point of law must be one which can be decided fairly and squarely one way or the other on the
facts agreed or not in issue or the pleadings and not one which will arise if some facts or facts in
issue should be proved.’’
In the case of Translink (U) Ltd vs. Sofitra Cargo Services Ltd & Others HCCS
No.0561/2006Counsel for the defendants intimated to court that he would be raising points of law.
The said points of law were framed as issues 1 and 2. Justice Bamwine held that at the time of
hearing the preliminary objections, the court had concluded the scheduling conference where points
of agreement and dis agreement were sorted out. That the two matters raised are indeed points of
disagreement. They are partly points of law and partly points of fact.
That as Law J.A. observed in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors
Ltd [1969] EA 696 at 700; ‘So far as I am aware, preliminary objection consists of points 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 the suit. Examples are 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 the suit
or refer the dispute to litigation’’.
Then at P.701 Sir Charles Nwebold, P. added:

‘A preliminary objection is in the nature what used to be a demurrer. It raises a pure point of law
which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot
be raised if any fact has to be ascertained or if what is sought is the exercise of a judicial discretion.’’
And in NAS Airport Services Ltd vs. A.G of Kenya [1953] EA 53, it was held that though the
objection 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 facts agreed or not in issue on the pleadings and not one
which will arise if some fact or facts in issue should be proved.
Court held that it was of the considered opinion that the grounds of the preliminary objections
advanced cannot be disposed of without ascertain some facts. They are matters appropriately
classified at a scheduling conference as points of disagreement.
In the case of Eng. Yashwant Sidpra & Anor vs. Sam Ngude Odaka HCCS No. 365/2007Justice
Kiryabwire reviewed the law in relation to Preliminary objections to give a greater clarity to the law,
the role of the counsel and the judge in such matter.
In that case the defendants had in paragraph 3 of their defense made it clear that they would object to
the suit as being bad in law and seek its dismissal. The defendant’s objections were largely grounded
on the plaintiffs not having complied with the prescribed procedure for commencement of
proceedings by a member of a company with respect the remedies they want court to grant them. That
noncompliance renders the suit incompetent.
Justice Kiryabwire stated that a preliminary objection (sometimes popularly referred to as a ‘PO’ at
the bar) at common law is in substance an ‘objection in point of law.’ Objections in points of law are
extensively discussed by the learned authors in the book ‘ODGERS’ Principles of Pleadings and
Practice in Civil Actions in The High Court of Justice’’. That P.147
“...Either party may object to the pleadings of the opposite party on the ground that it does not set
forth a sufficient ground of action, defense or reply as the case may be...”
That under English law this is what was formerly called a “demurrer”(from the French word demorrer
“to wait or stay” a practice abolished in England in (1883) but now called “an objection in point of
law”. The authors in Odgers (supra P.147) point out that an objection in point of law was preserved
largely so that parties might not incur great expense in trying issues of fact which, when decided,
would not determine their rights. The learned authors in Odgers (supraP. 148) also make the point
that as a general rule
“...It is best not to apply tohave any point of law argued before thetrial, unless the objection isone
which will dispose of the wholeaction...”
That the rationale for this is also well stated by the said learned authors. The first reason is this as
they rightly observe;
“...If the Defendant succeeds, the Plaintiff obtains leave, on paying the costs of the argument, to
amend his statement of claim, and it is better for the Defendant that the Plaintiff should be driven to
such amendmentat the trial...”
Secondly, not raising the objection at the beginning of the trial is not fatal.The learned authors further
write;
“...You need not be afraid that, by omitting to apply, you are throwing away chances of success – that
the objection, if not taken at once, cannot be taken afterwards...”
That two English cases well illustrate this point. The first is the judgment of Sir Edward Cokein the
case of The Lord Cromwell’s Case (1581) 4 Rep at P.14 (reproduced in Odgers supra P. 148 – 149)
where he held
“...when the matter in fact will clearly serve your client although your opinion is that the Plaintiff has
no cause of action, yet take heed that you do not hazard the matter upon a demurrer, in which, upon
the pleading and otherwise, more perhaps will arise than you thought of; but first take advantage of
the matters of fact, ad ultimum, and never at first demur in law when, after the trial of the matters in
fact, the matters in law(as in this case it was) will be saved to you...”(emphasis added).
In other words, if the facts are in your favour it is best practice to take advantage of them first as the
law in any event will ultimately support you. This wisdom of Sir Edward Cokeis 427 years old but is
still valid today.
The second case is that ofStokes V Grant(1878) 4 C.P.D at P. 28 where the celebrated Lindley J.(as
he then was) had this to say
“...if the Defendant wants to avail himself of his point of law in a summary way, he must demur; but if
he does not demur, he does not waive the objection and may say at the trial that the claim is bad on
the face of it...”
That the nature of a preliminary objection was also extensively discussed in our own East African
Jurisdiction in the Court of Appeal decision of Mukisa Biscuit Manufacturing Co. LtdVWest End
Distributors Ltd[1969] EA 696 Sir Charles Newbold(President of the Court as he then was) at P.
701held
“...A preliminary objection is in the nature of what used to be called a demurrer. It raises a pure
point of law which is argued on the assumption that all the facts pleaded by the other side are
correct. Itc annot be raised if any fact has to be ascertained or what is sought isthe exercise of
judicial discretion...”(emphasis mine).
In the lead opinion of Law(J.A as he then was) at P. 700 he observed
“...so for 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 in limitation,
or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to
arbitration..”
That the position in the Mukisa Buiscuits case (supra) on preliminary objections was upheld with
approve by The East African Court of Justice in the case of James Katabazi and 21 Others v The
Secretary General of The East African Community and The Attorney General of The Republic
of Uganda Reference No. 1 of 2007 (unreported).That this expose an objection in point of lawis
very instructive to this case and I agree with it. A preliminary objection should be made if the party
so raising it is convinced that when raised the objection so raised will dispose of the whole claim and
thus save the parties expense and embarrassment in trying facts that will not determine the rights of
the parties. Where an objection can be cured by the amendment with adequate provisions as to costs,
then it is a more efficient use of the court’s time that amendment be secured at the earliest
opportunity. Indeed inOdgers(supra P. 153) It is written
“...It is customary at the common law Bar before advising an application to be made (i.e. to strike out
a pleading)... to communicate with your opponent so that he may have an opportunity of amending
his pleadings...”
That the authors in Odgers(supra P. 153) are actually more bold and write
“...though you may think that your opponent’s pleadings discloses no reasonable cause of action or
defense to your claim, it by no means follows that you should at once apply to have it struck out or
amended. So long as the statement of claimor the particulars served under it disclose some cause of
action, or raise some question fit to be decided by trial, the mere fact that a case is weak or not likely
to succeed is no ground for sinking it out...”
That again I agree with the learned authors of Odgers in this regard.
Adjournments
Procedure, Grounds
O.17 r 1 (1) provides that the court may if sufficient cause is shown, at any stage of the suit grant time
to the parties or to any of them and may from time to time adjourn the hearing of the suit. In the
circumstances where the hearing can’t take place such as due to lack of witnesses, new matters
arising, having personal problems, sickness of counsel or parties etc. the law provides for
adjournment of hearing on application to the court showing sufficient cause. E.g. where the party
cannot proceed with the case without prejudicing his or her case the result of which will be a
miscourage of justice.
The court has discretion to grant or refuse the adjournment but must be done judiciously and
reasonable manner. The rationale is that justice requires a party to be accorded some time to get
themselves ready if any have genuine cause for not being ready.
In the case of Shabani vs. Karada Co. Ltd (1973) EA 497 It was held that an adjournment can’t be
granted as of right but can be granted for sufficient cause. It involves the exercise of discretion and
this must be done judicially.
In the case of Nuru Kaaya vs. Crescent Transportation Ltd SCCA No. 6/2002 Court held that there
two principles governing the exercise of discretion. The first, is that when trial courts grant
adjournments they (courts) exercise judicial discretion. The second, is that an appellate court will
normally not interfere with the exercise of judicial discretion by a lower court unless the lower court
failed to exercise the discretion judiciously. See Famous Cycle Agencies case
In the case of Yahaya Kiriisa vs. A.G & Anor SCCA No. 7/94Manyindo DCJ held that it cannot be
right for a court to force an advocate to argue a matter in which he or she is ill prepared on not
prepared at all. That will be a negation of justice to his client
In the case of Acaali Manzi vs. Nile Bank Ltd CS No. 87/93-1994 1 KALR 123, it was held that it
was now accepted that applications or adjournment by letter would not be accepted under normal
circumstances.
In the case of Sherif Yusuf vs. Phillip Kioko (1951) 24 (2) K.L.R. 75 held that a court cannot grant an
adjournment at a request by letter of a plaintiff who does not appear.
In the case of Salongo vs. Nantengolola (1976) HCB 290 held that if a new matter arises at the trial
which catches a party unaware, the party is entitled to an adjournment to prepare his case to meet this
new matter.
Adjournment will be refused if it is a deliberate attempt to delay the hearings.

In the case of Obiga Kania vs. Electoral Commission & Anor EPA No.4/2011 Justice Murangira
stated that the petition was given the last adjournment and was fixed for hearing in the presence of the
petitioners. That the petitioner opted not to come with a lawyer to represent him, but that he was not
ready to proceed with the petition. That there is nothing on the court record to show the whereabouts
of the counsel for the petitioner. That the firm representing the petitioner have other lawyers in the
firm but did not find it prudent to send one to prosecute the petition in court. That the petitioner’s
failure to prosecute his petition when it was the last adjournment offends O.9 r 22 and O.17 R 4 & 5
CPR.
Application can be made orally at the trial.

Where the judge is absent, the parties go to the registrar to adjourn their case or they can set another
hearing date by consent and file a consent form especially where the judge has not given his or her
diary to the registrar or clerk.
Where on the date of hearing the court is ready to hear the matter but witnesses or an advocate does
not appear on time when the court wants to hear the case, it can stand over the case to give the parties
or their advocate more time to establish what is happening and report on the way forward. Mere
absence of a party or witness alone is not enough reason to seek an adjournment, his/her presence
must be crucial or material on an indicated issue. Grant of an adjournment is discretionary, court will
refuse to grant adjournment in cases of un explained absence.
Where the party applying offers to pay costs, the court will normally allow an adjournment. Where an
adjournment is granted, costs may be paid by the applicant but where the adjournment is not as a
result of the faulty of any of the parties, costs may be in the cause i.e follow the results of the case or
may be shared by the parties i.e each party pays its own costs as the court may decide
Prosecution of suits
Generally after the parties have filed and exchanged their respective pleadings and the court has
received all the pleadings and the court has received all the necessary documents which the parties
intend to rely upon, the suit is set down for hearing. The parties will proceed to hear their claims or
defense by calling evidences which may be oral testimony of witnesses or documentary evidence
inform of exhibits. The hearing may be initiated by the plaintiff by taking out and serving hearing
notices upon the defendant where he or she filed a written statement of defense.-O.9 r 11(1). Hearing
may also be initiated by court by serving hearing notices to the parties O.9 r 13 CPR.
The parties may attend Court in person or their respective advocates or their recognized agents and
the suit will be heard on the day fixed on the hearing notice, summons or motion unless the hearing is
adjourned to a future date fixed by the court-0.9 r 14CPR. When neither parties appear when the suit
is called for hearing, the court may dismiss the suit-O.9 r 17 CPR
The court may from time to time adjourn the hearing of the suit either by fixing a day for further
hearing or generally-O.17 r 1 CPR. Once the hearing of the evidence has begun, hearing of the suit
should be continued from day to day until the witnesses in attendance have been examined unless the
court finds it necessary to adjourn beyond the following days-O.17 r 1(2a). Where the hearing of the
suit has been adjourned generally, either party may apply to restore the case for hearing O.17 r 1
(2b).If no application for restoration is made for a period of 12 month from the date of the last
adjournment, the court may give notice to the parties to show cause why the suit shouldn’t be
dismissed if a cause isn’t shown to the satisfaction of the court, the suit shall be dismissed-O.17 r
2CPR.
Where hearing of the suit has taken off and the party to suit has been given time to produce evidence
or cause the attendance of his or her witnesses or perform any other act necessary for further progress
of the hearing, the court may proceed after the time allowed has elapsed –O.17 r 4 CPR.
Default by the Plaintiff

O5 r 1 CPR provides that when a suit has been duly instituted summons may be issued to the
defendant ordering him/her to file a defense or to appear and answer a claim on a day specified
therein. The summons should be effected within 21 days from the date of issue but the plaintiff may
apply for extension of the time for service within 15 days after the expiration of 21 days. If service
has not been effected within 21 days from the date of issue and there is no application for extension
of time or the application has been dismissed, the suit shall be dismissed without notice.
Where on the day fixed for filing a defense or to appear and answer it is found that the summons had
not been served upon the defendant because the plaintiff had not paid court fees or charges for
services, the court may dismiss the suit-O.9 r 16 CPR
Where after summons has been issued to a defendant and returned to the court un served and the
plaintiff fails to apply for issue of a fresh summons for a period of 1yr from the date of return, and to
satisfy court that he or she used his endavours to discover the residence of the defendant who has not
been served, or that the defendant is avoiding service of process, the court may dismiss the suit. The
plaintiff may bring a fresh suit subject to the law of limitation-O.9 r 19 CPR.
Where the defendant appears and the plaintiff does not appear when the suit is called for hearing, the
court shall dismiss the suit unless the defendant admits the claim or part thereof, in which case court
shall pass judgment and decree against the defendant upon such admission-O.9 r 22 CPR.
Where a suit is wholly or partly dismissed under O.9 r 22 the plaintiff is precluded from bringing a
fresh suit in respect of the same cause of action, but he or she may apply to set aside the dismissal and
proceed with the hearing of the suit if satisfies court that there was sufficient cause for nonappearance
when the suit was called for hearing. The opposite party should be served with the notice-O.9 r 23
CPR.
If a plaintiff does not within 8 weeks from delivery of the defense or within 10 weeks from the
delivery of counter claim, set down a suit for hearing, then the defendant may either set down the suit
for hearing then the defendant may either set down the suit for hearing or apply to court to dismiss the
suit for want of prosecution-O.17 r 5 CPR. In the case of Nantaba vs. Musoke [1988-1990] HCB 98
was an application seeking an order that the high court dismisses the suit under O.15 r 5 (now O.17 r
5) for want of prosecution. Reliance was put on an affidavit sworn by the applicant / defendant to the
effect that since the case was filed, the plaintiff had not made efforts to have the suit fixed. It was also
argued that the suit pendency negatively affected the defendant’s right and the suit property. Court
found that since the applicant/ defendant filed a defense he had not taken every step to see that the
suit was fixed for hearing but no step had been taken by the plaintiff and 8 weeks had elapsed. The
suit was dismissed for want of prosecution.
In the case of Ayub Sulaiman vs. Salim Kabambalo SCCA No. 32/1995, counsel for the appellant
had applied for an adjournment complaining that the suit had been fixed exported, not cause listed
and the appellant who was a plaintiff was in Hong Kong. The learned trial judge dismissed the suit
for want of prosecution under O.15 r 5 CPR. An application for review of the dismissed suit was also
dismissed. Court held that the learned trial judge considered 8 yrs the suit had been dragging in due to
the adjournments granted at the instance of the appellant. Clearly that the appellant had lost interest in
the case.
That the main issue to determine was whether the learned trial judge erred in law or fact when he
dismissed the appellant’s application for review of a ruling which dismissed the suit. That it appears
that section 101 CPA would have been more relevant because it provides for inherent powers of court
to make such orders as may be necessary for the ends of justice or prevent an abuse of court process.
That as it was observed by the Supreme Court in SCCA No. 17/1993 National Union of Clerical
Commercial Professional and Techinical Employee vs. National Insurance Corporation, it is now
settled that the existence of a specific procedure provision or remedy cannot operate to restrict or
exclude the court’s inherent jurisdiction under s.101 CPA. That the dismissal of both the application
for an adjournment and the appellant’s suit was based on valid grounds. If the ground of the
application for review was to challenge the effectiveness of service, it should have been instituted
under O.9 r 20 CPR which empowers court to set dismissal order if the applicant satisfies court that
there was sufficient cause for nonappearance when the suit was called for hearing.
In any case where no step is taken for a period of 2 yrs by either party with a view to proceeding with
the suit, court may dismiss the suit. The plaintiff may bring a fresh suit subject to the law of limitation
O.17 r 6.In the case of Njiramakwene vs. Bitariho [1973] HCB 58, Court held that O.15 r 6 (now
O.17 r 6) enables court on its own initiative without notice to either party to dismiss a suit where
there has been an inordinate delay for 2 yrs. Court also observed that in the present case the action
seems to have been allowed to go to sleep for a little over 3yrs. It is impossible to have a fresh trial
after a long time has lapsed. It is the duty of the plaintiff to bring his or her suit to early trial. There
was both culpable and inexcusable activity on part of the plaintiff which could not be countenanced
and O.15 r 6 provides court with machinery to disencumber itself of caseloads in which the parties
appear to have lost interest.
In the case of Victory Construction vs. Duggal (1962) E.A 697 it was held that the plaintiff’s
slumber for so long was clear evidence for lack of interest in the prosecution of the suit and a reason
for dismissal for want of prosecution
In Nilani vs. Patel (1969) EA 340 the Plaintiff delayed for 2 yrs to set down the suit for hearing. It
was held that there had been an inordinate delay by the plaintiff which was inexcusable and the suit
was dismissed.
Reinstatement of Dismissed Suit-O.9 r 19 & 20

Where the defendant appears and the Plaintiff does not appear when the suit is called for hearing,
Court may dismiss the suit under O.9 r 22 CPR. Where the suit is dismissed under O.9 r 22 CPR, the
plaintiff may apply for an order to set the dismissal aside and reinstated suit for hearing if he satisfies
court that there was sufficient cause for his nonappearance when the suit was called for hearing. The
application should be served on the opposite party-O.9 r 23 CPR.
In the case of Sherali Bandali Jaffer vs. Seggane [1972] ULR 108, it was held that before a suit can
be dismissed under O. 9 19 (O.9 r 22) the defendant has to prove that the hearing notice has been
properly served on the plaintiff unless the hearing date was fixed by the plaintiff.
In the case of Fredrick Ssekyana Sebugulu vs. Daniel Katunda [1979] HCB 46, it was held that an
order for dismissal could be made under O.9 r 19 (now O.9 r 22) only if the plaintiff was not
represented on the hearing date. In as much as the plaintiff counsel was present and appeared on the
plaintiff’s behalf when the suit was dismissed, the plaintiff was then pursuant to O.3 r 1 legally
present before court on that day. Accordingly the order of dismissal could not have been made under
O.19 r 19 CPR.
In the case of Norah Nakiridde vs. Hotel International Ltd [1987] HCB 85, it was held that
considering whether there was sufficient cause why counsel for the applicant did not appear in court
on the date the application was dismissed, the test to be applied in cases of that nature was whether
under the circumstances a party applying honestly intended to be present at the hearing and did his or
her best to attend. It is also important for the litigant to show diligence in the matter. In the instant
case it was clear from the affidavits of the applicant that counsel did his best to appear in court but
was prevented by illness. The son of the applicant did in fact came to court and that showed diligence
on part of the applicant.
In the case of National Insurance Corporation vs. Mugenyi & Co. Advocates [1987] HCB 28, Court
applied Girado vs. Alam & Sons (U) Ltd 1971 EA 448‘where no sufficient cause was shown but court
set aside a dismissal of the suit by invoking the inherent jurisdiction of court and held that it is open
to the court to invoke its inherent powers under S. 98 CPA to set aside a dismissal and reinstate a
dismissed suit for hearing because the provisions of s.98 CPA have a wider application than the
provisions of O.9 r 20 CPR which merely referred to sufficient cause ‘
In the case of A.P Bhimji Ltd vs. Micheal Opkwo H.CMA No. 423/2011 the application before court
was to set aside the order dismissing the suit and direction that it is reinstated for its hearing and
determination. Held that under O.9 r 17 Court could have proceeded to dismiss the suit instead
evoked the provisions of O.17 r 4 to dismiss the suit. That court has to draw a distinction between a
dismissal made under O.9 r 17 and a dismissal made under O1 r 4. There is no similar provision for
reinstatement of a suit dismissed under O.17 r 4 CPR.
In the case of Busingye & Anor vs. Gianluigi & Anor HCMA No. 203/2013 Justice Hellen Obura
held that the issue before court is whether there is sufficient cause that warrants setting aside
dismissal and reinstating the case. That O.9 r 23 empowers court to make an order setting the
dismissal of the suit on such terms as to costs or otherwise the court thinks fit. However the applicant
must first satisfy the court that there was sufficient cause for nonappearance when the suit was called
for hearing. That the Supreme Court in Nicholas Roussos vs. Gulam Hussein Habib & Anor C.A
No.9/1993 held that some of the grounds or circumstances which may amount to sufficient cause
include mistake by an advocate though negligent, ignorance of procedure by an unrepresented
defendant and illness by a party. That similarly in the case of Ms. United office equipment &
Stationery Supply E.A vs. Uganda Bookshop Ltd [1987] HCB 90 Court held that failure by counsel
for the plaintiff to appear was due to negligence of counsel, although sufficient cause may be absurd
as counsel’s negligence. That in National Insurance Corporation vs. Mugenyi & Co. Advocates
(1987) HCB 28, the court of Appeal held that, ‘The main test for reinstatement of a suit was whether
the applicant honestly intended to attend the hearing and did his best to do so. Two other tests were
namely the nature of the case and whether there was a prima facie defense to that case….’’. That in
the instant case the applicant’s explanation for their failure to appear in court is that the clerk to their
lawyer failed to retrieve copies of the notice of motion and so they were unaware of the hearing date.
That both the applicant and their lawyer were not aware of the fixture. Since counsel for the
applicants conceded that they were negligent in handling that application, they shall pay the taxed
costs of this application to the respondent.
The four main tests for reinstatement of a suit are;
i) Whether the applicant honestly
ii) Intended to attend the hearing and did his best to do so
The other two sets are;
iii) The nature of the case and
iv) Whether there was a primafacie defense to that case.
Withdrawal and Adjustment of Suit-O.25 CPR

This is where the parties to a suit or any of them compromise a suit or decide not to proceed with the
suit especially if the subject matter is not existing or has been destroyed or in cases for trespass, a
trespasser has left the premises hence an order for eviction or vacant possession becomes useless or
where the claim is satisfied or performed wholly or in part or where the party feels that he or she is no
longer interested in the proceedings.
The plaintiff may at any time before delivery of the defendant’s defense or after receipt thereof before
taking any other steps in the proceedings in the suit by notice in writing wholly discontinue his suit
against all or any of the defendants or withdraw any part or parts of his or her alleged cause of
complaint. He/she shall pay the defendant’s cost of the suit but such discontinuance / withdraw shall
not be a defence to any subsequent action-O.25 r 1 (1) CPR.
In all other instances especially where hearing has started the plaintiff cant withdraw or discontinue
the suit without leave of court and subject to such terms as to the costs and any other suit as the court
may impose upon application by the plaintiff-O.25 r 1 (2) CPR.
Likewise a defendant may with leave of court withdraw or strike out the whole or any party of his/her
alleged grounds of defense or counterclaim subject to such terms as to costs and any other suit as the
court may impose upon application by the defendant-O.25 r 1(3) CPR
A fresh suit subsequently instituted in respect of the same cause of action is subject to the terms
imposed by the court and the law of limitation and may be stayed until the costs occasioned by the
matter withdrawn have been paid-O.25 r 3,4,5 CPR. This applies to situations where a party
withdraws unilaterally without a consent of the other parties to the suit or without leave or permission
of court.
Although O25 r 7 requires application for withdraw to be by chamber summons. Its however
sufficient for a party to write to the registrar withdrawing the suit with a copy to the opposite party or
his/her advocate except in cases were leave of court to withdraw is necessary as held in Kalema
Rhoda vs. Departed Asian Custodian Board HCCS No. 874/1990.
Unilateral withdraw also arise where the defendant hasn’t filed a defense or where a defense has been
filed but no further steps have been taken in the suit i.e where the trial process/hearing hasn’t started
in such cases costs will not be awarded. The plaintiff writes to the registrar to notify him/her of the
withdrawal.
Where its proved to the satisfaction of court that a suit has been adjusted wholly in part by any lawful
agreement or compromise or where the defendant satisfies the plaintiff in respect of the suit, court
may on application of or satisfaction to be recorded and pass a decree in accordance therewith sofar
as it relates to the suit-O.25 r 6 CPR.
In the case of Ezekiel Mulondo vs. Fenekansi Semakula (1982) HCB 27 it was held that;
i) Under O.22 r 1 (1) (now 25) CPR a plaintiff may discontinue his/her suit at any time before
the defense is filed or even after the defense is delivered but no other steps have been taken in
the suit. To that extent no leave of court is required. This is a right both in law and common
sense because the plaintiff may be forced due to the lack of evidence or some other good
reason to unilaterally abandon his/her suit for the time being or for good
ii) Although under O.22 r 7 CPR an application under O.22 r 1 must be by chamber summons,
it’s not necessary that discontinuance of the suit must be done with the leave of court by
chamber summons, its only in cases where leave of court, withdraw is necessary that such
leave must be sought by way of chamber summons. In the instant case the plaintiff’s written
notice therefore effectively and properly withdrew his suit.
In the case of Phillip Masanga vs. Buganda Saw Mills Ltd (1973) 1 ULR 131, the plaintiff sued his
employer, after issues had been framed and the plaintiff had given evidence his counsel applied for
leave to withdraw the suit under O.22 r 1(2) CPR. Due to the unsatisfactory and confused evidence
which the plaintiff gave the application was resisted by the defendant counsel for reason that the
plaintiff counsel knew that he would not possibly succeed on the evidence and submitted that there
was no merit in the application. Court observed that;
i) O22 r 1 (2) CPR conferred a discretion on the court to order a suit to be withdrawn or
discontinued upon such terms as to costs and any other case and otherwise as may be just but
the discretion given should be exercised within certain limitations and so as not to be taken
away from the defendant any advantage to which he/she was fairly and reasonably entitled.
ii) A distinction should be drawn between cases where no evidence was adduced and cases where
evidence was adduced. In the former O.22 r 1 (1) would apply in the later the main
consideration is whether the opposite party would be prejudiced if the leave sought was
granted. The object of O.22 r 1(2) is not to enable the plaintiff after he or she has failed to
conduct his suit with proper care and diligence and after his witnesses have failed to support
his case to obtain an opportunity of commencing the trial afresh in order to avoid the result of
his previous bad conduct of the case so as to prejudice the opposite party
iii) The application was allowed and was ordered that the suit be discontinued under O22 r 1(2)
CPR upon terms that the plaintiff would pay costs incurred by the defendant and no other
action would be brought by the plaintiff for the same subject matter.
Topic VI
PRE-TRIAL AND JUDGEMENT REMEDIES
The parties file a suit and exchange pleadings and then the trial process continues and the parties are
obliged to induce all their claims and time is of essence. The Civil Procedure Act and the Civil
Procedure Rules hence provided remedies or a relief like interlocutory injunction, interim orders
because by the time the judgment is given the judgment is not a waste.
1) Injunctions
These are orders of court restraining parties from doing particular things. They may be permanent,
temporary, interim, marevea injunction but all these are orders of court.
i) Interlocutory / Temporary Injunction
A temporary injunction is a form of an interlocutory remedy the effect of which is directing a party to
the proceedings to do or restraining from doing a particular act until the final determination of the
matter in controversy. It is granted in cases where monetary compensation would afford an
inadequate remedy to an injured party.
Applicable law
In Uganda the court’s jurisdiction to grant injunction is derived from section 38 of the Judicature Act
specifically provides that the High Court shall have powers to grant an injunction to restrain any
person from doing any act as may be specified by Court. Magistrates’ courts too have powers to grant
injunctions by virtue of their civil jurisdiction under section 98 CPA.
In order to prevent the ends of justice from being defeated, the court if it so prescribed grant a
temporary injunction and in case of disobedience commit the person guilty of it to prison and order
that his or her property be attached and sold-S. 64(e)
The specific powers of court and the circumstances under which a temporary injunction may be
granted or issued are outlined in Order 41 CPR. O. 41 r 1 provides that where in any suit it is proved
by affidavit or otherwise;
a) That any property in dispute in a suit is in danger of being wasted, damaged or alienated by
any party to the suit or wrongfully sold in execution of a decree or
b) That the defendant threatens or intends to remove or dispose of his property with the view to
defraud his creditors, the court may by order grant a temporary injunction to retrain such acts
or make such other order for the purposes of staying or preventing the wasting, damaging,
alienation, sale, removal or disposition of the property as the court thinks fit until the disposal
of the suit or until further orders.
O.41 r 2 deals with injunction to restrain breach of contract or other injury.

In the case of Samuel Mayanja vs. Uganda Revenue Authority HCMA 17/2005, the applicant an
aggrieved tax payer approached court not under its appellate jurisdiction but under its original
jurisdiction as there is no appeal, but under its original jurisdiction under section 38(1) Judicature Act
seeking a temporary injunction to retrain the respondent from enforcement of agency notice issued.
Justice Egonda Ntende held that section 14 of the Judicature Act recognizes the unlimited original
jurisdiction of the High court which is conferred by the constitution, and further provides for the law
applicable in the exercise of such jurisdiction by the High court. Section 38 (1) J.A deals with the
grant of injunctions. That the high court shall have powers to grant injunction to restrain any person
from doing any act as may be specified by the High Court. That clearly the high court is granted the
powers in appropriate cases to grant injunction as a remedy. That the provisions of O.41 r 1&2 CPR
deals with applications for a temporary injunction as an interlocutory matter in a pending proceeding
before court. That here there is no pending proceeding before this court.
In the case of British American Tobacco Uganda Limited vs. Bamudu Tobacco Company Ltd
HCMA 599/2005, the applicant also a plaintiff in the head suit sought a temporary injunction to
retrain the respondent from buying tobacco from farmers in northern Uganda during 2005/2006
tobacco buying season and from interfering with the plaintiff’s sponsorship contract with tobacco
farmers in the same region.
Justice Egonda Ntende held that O.37 r 1 CPR (now O.41 r 1) allows for applications where it is
shown that any property in dispute which is the subject matter of a suit is in danger of being wasted,
damaged, alienated or wrongfully sold in execution. Firstly it must be shown that the head suit is one
the subject matter of which the property in dispute. Secondly that the property must be in danger of
wastage, damage, alienation of sale as the case may be by a party to the suit. These two conditions
must be satisfied before considering any of the grounds. That the subject matter in the instant case is
not about property as intended under O.37 r 1 (a) CPR. The suit is not concerned with probable
wastage, damage or alienation of any property. That the suit is about interference with the contract, a
matter governed by O.37 r 2 (1) CPR. On that ground alone of being brought under a wrong law, the
application id dismissed
It should be noted that before a party applies for a temporary injunction, there must be a pending suit
or main suit and the application is by a miscellaneous application which is miscellaneous to the main
suit.
Nature and essence of a temporary injunction

The purpose of a temporary injunction is to maintain the status quo until the final determination of
issues in controversy. In the Case of Jan Mohammed vs. KasamaliVirjiMadhani (1953) 20 EACA 8,
the lower court granted exparte injunction the effect of which was restrain a party from carrying on
the respondent’s business or occupying the respondent premises or using the furniture and the chattels
therein. On appeal, Sir Newbold held that,
‘’I have always understood that the whole purpose of an injunction is that the matters ought to be
preserved in the status quo until the question to be investigated in the suit can be disposed off’’.
In this case the question was whether the appellant or respondent were entitled to the occupation of
the suit premises and carry on the hotel premises. The appellant was admittedly in possession but the
injunction didn’t purport to maintain the status quo but actually ordered him to vacate the premises
and cease doing business.
In the case of Francis Kayanja vs. Diamond Trust Bank (U) Ltd HCMA No. 300/2008Lameck N.
Mukasa held the law is that the granting of a temporary injunction is a judicial discretion which court
exercises judiciously upon considering the conditions below. Fist whether the applicant has shown a
prema facie case with probability of success. Secondly that the applicant would suffer irreparable
injury which would not be adequately compensated by an award of damages. Thirdly, if the court is
in doubt on any of the above two, it will decide the application on the balance of convenience. That
the prime purpose of a temporary injunction is to preserve the status quo pending the disposal of the
main suit. Therefore under O.41 r 1 CPR it is therefore first and foremost to identify the status quo.
Pendency of a suit
For the court to entertain an application for a temporary injunction, there must be a pending suit.
Under that suit the applicant will claim to court under miscellaneous application in the suit to apply
for a temporary injunction. In the case of Samuel Mayanja vs. Uganda Revenue Authority HCMA
17/2005, Justice Egonda Ntende held that the provisions of O.41 r 1&2 CPR deals with applications
for a temporary injunction as an interlocutory matter in a pending proceeding before court. That here
there is no pending proceeding before this court.
Discretion of Court
The granting of a temporary injunction is at the discretion of court exercised judicially.
In the case of Alley Route Ltd vs. Uganda Development Bank Ltd HCMA No.
6344/2006LameckMukasaheld that the law relating to granting temporary injunction is that of an
interim injunction is the exercise of judicial discretion. Court must exercise that discretion judicially.
See Sargent vs. Patel [1949] 16 EACA 63.
Maintenance of the Status Quo.

An application for a temporary injunction must satisfy court that if granted will maintain the status
quo till the final determination of the issues in controversy
In the case of Francis Kayanja vs. Diamond Trust Bank (U) Ltd HCMA No. 300/2008Lameck N.
Mukasa held that the prime purpose of a temporary injunction is to preserve the status quo pending
the disposal of the main suit. Therefore under O.41 r 1 CPR it is therefore first and foremost to
identify the status quo.
It should be noted that an injunction of this nature is unique. The court’s action can be justified if the
appellant had admitted that he was a trespasser upon the premises.
Pre-Conditions / Considerations for Grant of a Temporary Injunction.

The principles that the courts consider in granting a temporary injunction have been articulated in a
number of authorities.
In the case ofKiyimba Kagwa vs. Katende [1985] HCB 43, the applicant was the registered owner of
the suit land which was disputed between him and the defendant. The defendant had brought a tractor
and began cultivating the land. The plaintiff applied for a temporary injunction and Odoki J held that
the conditions for grant of a temporary injunction are;
1) The applicant must show a premafacie case with a probability of success. This explains why
the applicant has to begin by filing a suit.
2) Such injunction will not normally be granted unless the applicant might otherwise suffer
irreparable damages which would not be adequately compensated by an award of damages
3) If the court is in doubt, it may grant an application on the balance of convenience.
In the case of Francis Kayanja vs. Diamond Trust Bank (U) Ltd HCMA No. 300/2008
Lameck N. Mukasa held the law is that the granting of a temporary injunction is a judicial
discretion which court exercises judiciously upon considering the conditions below. Fist
whether the applicant has shown a prema facie case with probability of success. Secondly that
the applicant would suffer irreparable injury which would not be adequately compensated by
an award of damages. Thirdly, if the court is in doubt on any of the above two, it will decide
the application on the balance of convenience.
In the case of Alley Route Ltd vs. Uganda Development Bank Ltd HCMA No. 6344/2006
LameckMukasa held that the conditions for the court to consider whether or not to grant a
temporary injunction are that first an applicant must show that he has a prema facie case with
probability of success. Secondly, an interlocutory injunction will not be granted unless the
applicant might otherwise suffer irreparable injury, which would not be adequately
compensated by an award of damages. Thirdly if the court is in doubt it will decide the
application on balance of convenience.
Elements
1. Existence of a premafacie case
The purpose of there being a premafacie case is that the respondent should not unnecessarily be
prevented from exercising his/her right unless the applicant has a good case against the
respondent. It is a pre-requisite that the applicant should have instituted the suit against the
respondent before applying for an injunction. In the case of Re Sarah Nalwanga (1974) HCB
136, after considering the fact that the purpose of granting a temporary injunction is to maintain
the status quo, court held that the applicant must disclose that he or she has a premafacie case
against the respondent. In Kiyimba Kagwa vs. Katende Court observed that a premafacie case
does not necessarily mean a good case but means a case with probability of success.In answering
the question whether there was a primafcie case, court noted that there was serious question of
ownership of land and that the applicant had proved that he had a premafcie case with probability
of success.
The principle for the applicant to show a prema facie case with a strong probability of success has
been criticized in the case of American Cyanamid Co. Ltd vs. Ethicon [1975] 1 ALL E.R 504 where
Lord Diplock at page 510 held that there is no requirement for the plaintiff to establish a prima facie
case. All the plaintiff needs to show by his action is that there are serious questions to be tried and
that the action is not frivoulous or vexatious. The task of court is to consider whether the applicant’s
application discloses an arguable case which merits trial.
2. Irreparable Injury / Damage.

Whether the applicant is likely to suffer irreparable injury if the injunction is not granted
depends on the facts of each case. In the case of NITCO Ltd vs. Hope Nyakairu [1992-93]
HCB 135, Court held that on the facts of the case the applicant hadn’t proved that he would
suffer irreparable injury if the injunction wasn’t granted. That the grant of the temporary
injunction would instead inflict irreparable injury on the defendant as the plot of land would
be removed from him if he did not develop it within 5yrs. In case the defendant proceeded
with the building and eventually at the end of the trial the plot turns out to be of the plaintiff,
the defendant would be ordered to demolish the building, remove the debris and compensate
the plaintiff for any damage to the plot. If on the other hand the plot was declared for the
defendant, the plaintiff would suffer nothing except costs.
In KiyimbaKagwa vs. Katende Court defined irreparable damage or injury to mean that there
must not be physical injury but the injury must be substantial or a material one i.e one that
can’t be adequately compensated by damages.
In the case of Babumba vs. Bunju [1992] III KALR 120, court held that in view of the
scarcity of accommodation in Kampala if the applicants were evicted they would suffer
irreparable injury since alternative accommodation would not be easy to get.
3. Balance of Convenience
The third test is only applied where the court is in doubt on the first two principles and that is
that of balance of convenience. This requires that the court weighs the convenience of
complying with the injunction on part of the respondent against the damage that the applicant
would suffer if the injunction isn’t granted. If the damage outweighs the inconvenience then
the applicant would be granted the injunction. In the case of UCB vs. General parts, Court
held that the applicant was a small company compared to the respondent and as such the
applicant was likely to be more inconvenienced if its property was sold.
In KiyimbaKagwa vs. Katende the balance of convenience was in favour of granting the relief
to the plaintiff who was in possession and was likely to suffer more damages if the land in
question was interfered with.
Injunctions against Government

Section 14 of the Government Proceedings Act Cap 77 gives the court powers to grant all
such remedies against government as may be granted against private individuals in civil
proceedings. However the section bars the court from giving any such relief against the
government if the effect is to grant an injunction or to order specific performance.
Similarly according to section 14(2) an injunction can’t be granted against a government

official if the effect is that the relief is granted against government.
In the case of Attorney General vs. Silvers Springs Hotel Ltd (1992) II KALR 42, Court
observed that the purpose (of now section 14) of is that government machinery shouldn’t be
brought to halt and the government shouldn’t be subject to embarrassment. That it will be
against public policy if the government business was brought to halt.
In the case of Christopher Sebuliba vs. Attorney General the plaintiff sued the government to
recover land and for an eviction order in the trial court. The eviction order was denied as
being contrary to section 14 of the Government Proceedings Act. On appeal, Justice Platt held
that whereas the government is entitled to protection, such protection should be scrutinized
carefully. There situations where the government may not insist on such protection or may by
implication wave its immunity. In this case the government conduct was such that it had
waved its immunity. The government had indicated to the plaintiff that it wouldn’t vacate the
premises without a court order. However court noted that it would be unfair to the plaintiff if
the same government claimed immunity when faced with the court order.
The current position of the law as regards injunctions against government is in the Court of
Appeal decision in the case of Attorney General vs. Osotraco Ltd C.A No.32/2002. An appeal
arising from the judgment and orders of the High Court (Egonda Ntende) ruled that s.15 (1)(b)
of the Government Proceedings Act not to be inconformity with the 1995 constitution and
made ancillary order of eviction against the appellant and its agents with costs. Court of
Appeal held that Art.273 requires existing laws to be construed with such modification,
adoption, qualification and exceptions as may be necessary to bring into conformity with the
constitution. That Art. 273 only empowers all courts to modify the existing unjust laws
without necessarily having to refer all such cases to the constitutional court. This provision
enables the court to expedite justice by construing unjust and archaic laws and bringing them
in conformity with the constitution, so that they do not exist and are void. That the learned
judge in his judgment reviewed a number of foreign decisions whose primary object was ‘to
do away with the archaic state protection and to place the sate or the government at par with
any other juristic legal entity in line with modern social thinking of progressive societies.’
That this is the object of Art. 273 and cannot be said that he acted outside the ambit of Art.
273. That the Silver Springs case predates the 1995 constitution by about 6 years, times have
changed, the decision cannot therefore be said to be in line with the spirit of the new
constitution especially Art. 126(1) which provides that judicial powers is derived from the
people and shall be exercised by the courts established under the constitution in the name of
the people and in conformity with the law and with the values, norms and aspirations of the
people. That since the 1995 constitution, the rights, powers and immunities of the state are not
immutable anymore. That the judge’s orders of eviction were confirmed.
O41 r 3 requires service of application to the opposite party. i.e You cant get an exparte
injunction. 041 r 9 Application is by chamber summons supported by affidavit. O.6 r 1
Summary of evidence, witnesses
Interim Orders
In the case of Souna Cosmetics Ltd vs. The Commissioner Customs URA & The Commissioner
General URA Misc. Application No. 424 of 2011in an application for grant of interim orders, the
applicant has to prove the following;
1) That there is a bonafide arguable case for consideration on the merit before court
2) That a substantive application is pending which will be rendered nugatory if the application is
not granted
3) There is eminent / serious threat before hearing the pending substantive application
That an application for an interim injunction is not an application on the merits but meant to
preserve the rights of appeal or right of hearing on the merits which may be curtailed if the status
quo is changed. That the law concerning an interim stay of execution or injunction is that the
court preserves the right of the applicant/ appellant to be heard on the merits. This is very limited
jurisdiction which does not deal with the merits of the suit.
2. SECURITY FOR COSTS AND FURTHER SECURITY FOR COSTS

O.26 CPR, S. 284 Companies Act, 2012.
Principles governing security for costs.
The court may if it deems fit order a plaintiff in any suit to give security for the payment of all costs
incurred by any defendant-O26 r 1 CPR. Application for security for costs under O26 r 1 should be
by chamber summons-O26 r 3 CPR.
In E. African Holdings Ltd vs. Madhvani HCCS No.1181/1988 it was held that the language of O.26
r1 is extremely plain, it talks about costs incurred, it talks about the past not the future, the court
would not make an order for costs likely to be incurred by any defendant in the future.
Sec 284 of the Companies Act, 2012 provides that where a limited liability company is plaintiff in
any suit or other legal proceeding, any judge having jurisdiction in the matter may, if it appears by
credible testimony that there is reason to believe that the company will be unable to pay the costs of
the defendant if successful in his or her defense, require sufficient security to be given for those costs
and may stay all proceedings until the security is given.
It appears it is possible to apply for security for costs in respect of future costs likely to be incurred by
the defendant under section 284 of the Companies Act, 2012 unlike O.26 r 1 CPR where the
defendant can only apply for security for past costs already incurred.
In the case of Unidrom Ltd vs. Kaweesi & Co.Ltd H.C.C.S. No. 878/90 it was held that an order for
security for costs would issue because the plaintiff company was a foreign company incorporated in
the United Kingdom without property or investments in Uganda. The security was supposed to be by
bond to the satisfaction of the registrar.
In the case of John Mukasa & Litho Pack Ltd vs. M/s. Srijaya Ltd HCMA No. 215/2004 Justice
Kiryabwire held that the purpose of security for costs as provided under O.23 r 1 CPR is to defend a
suit instituted by a plaintiff who cannot pay his costs. That the grant of an order for security for costs
is one of judicial discretion. The registrar has powers under expanded jurisdiction granted to registrar
by the Hon. The Chief Justice under practice Direction No. 1/2002 entitled judicial powers of the
registrar.
That from the authorities it would appear that the leading case in Uganda on the test to be considered
in deciding whether or not to grant an order for security for costs is that Ssekandi Ag J (as he was
then) in Anthony Namboro vs. Henry Kaaala [1975] HCB 315 and these are;
a) Whether the applicant is being put to undue expense by defending a frivolous and vexatious
suit
b) That he has a good defense to the suit
c) That he is likely to succeed
These are the first tier of tests that have to be met. It is only thereafter that a second tier test can be
considered namely;
i) Inability to pay
ii) Poverty but that mere poverty is not by itself a ground for ordering security for costs, if
this were so, poor litigants would be deterred from enforcing their legitimate rights
through the legal process
iii) Whether the respondent has a triable cause of action against the applicant and there is a
likelihood of him succeeding.
That the principles to guide court in determining application for security for costs, were reiterated in
G.M Combined (U) Ltd vs. A.K. Detergents (U) Ltd C.A No. 34/95 as follows;-
1. The major consideration is the likelihood of success of the plaintiff’s case, put differently
whether the plaintiff has a reasonably good prospect of success, or whether the plaintiff claim
is bonafide and not a sham.
2. If there is a strong prima facie presumption that the defendant will fail in his defense to the
action the court may refuse him security for costs of a defendant who has no defense to the
claim
3. Whether there is admission by the defendant on the pleadings or elsewhere that money is due
4. If the defendant admits so much of the claim as would be equal to the amount for which
security would have been ordered the court may refuse him security for he can secure himself
by paying the admitted amount into court
5. Whether the defendant admits his liability the plaintiff will not be ordered to give security for
costs
6. Where there is a substantial payment into court or an open offer of or substantial amount; an
order for security for costs will not be made.
That a defendant may in certain cases ask for an order to compel the plaintiff to give security for costs
of the action, for example where the plaintiff is ordinarily resident abroad, and has no substantial
property, real or personal property within the jurisdiction of court. It is important to note that at this
stage a trial will not have taken place so as an assessment of the merits of the application can only be
made based on the pleadings, the affidavits for and against the application and other relevant
materials brought before court.
That mere poverty is not itself a ground for security for costs. This point is reiterated in Karim Elah
vs. Ahmed Mohammed (1929-30) ULR that inability of the plaintiff to pay his debts is not sufficient
reason to order security for costs.
In the case of Deepak K. Shah & 3 Ors vs. Mananura & 2 Ors HCMA No. 361/2001, the plaintiffs
in the suit were ordinarily residents in Nairobi, Kenya outside the jurisdiction of court. Defendants
are residents of Uganda who applied to court for an order requiring the plaintiffs pay security for
costs under O.23 (now 26) CPR. Justice Ogoola held that the power of court to order a plaintiff to pay
security for costs is entirely discretionary matter of court. There is no longer any inflexible rule or
practice to the effect that the plaintiff resident abroad, will by that reason alone, be ordered to give
security for costs. Rather court in exercising its powers under O.23 CPR takes into account all the
circumstances of the particular case. That as it turns out the plaintiffs are residents of Nairobi, Kenya
a partner State (along with Uganda and Tanzania) and this fact of the E. African community residents
beg for a fresh re evaluation of our judicial thinking in relation to such matters as the implementation
of O.23 CPR. (i.e. need to order community residents to pay costs). That the EAC Treaty establishes
a customs Union, a common market and a monetary union. In particular the treaty makes express
provisions for the laws of the partner state including standardization of the judgments of courts within
the community, establishment of common bar (i.e. cross boarder legal practice) in the partner states.
In this regard court notes that there is already existence of an East African Judges and Magistrates
Association as well as the E.A African court of justice. Under the treaty judgments of the E. African
court of justice are to be enforced through the national courts of the partner states. There can no
longer be an automatic and inflexible presumption for court to order payment of security for costs
with regard to plaintiff who is a resident of the E. African community. Therefore the plaintiff
residence as a factor in consideration whether or not to order payment of security for costs is
disregarded. In exercising the discretion as to whether or not to order security for costs, courts must
consider all other circumstances of the case. In this application, plaintiffs have averred that they own
certain property in Kenya the existence of which have not been challenged at all.
That in the instant application, it is held that plaintiff residence in Kenya is of no consequence to the
determination of the issues at hand (i.e. payment of security for costs) since such residence is
residence within the East African Community.
That alternatively, the position of community residence is analogous to a plaintiff who lives within
the court’s jurisdiction, but who has no property at all (i.e. who is poor, insolvent or even bankrupt).
In such a case, the law is trite that the insolvency or poverty of a plaintiff is no ground for requiring
him to give security for costs. That the order applied should not become a weapon of oppression
against the plaintiff’s action, and plaintiff’s case has a high likelihood of success.
In the case of Development Finance Corporation of Uganda Ltd & Ors vs. N.G General Limited
HCMA No. 152/1999 applicant sought for orders for payment of costs on grounds that the respondent
was under receivership and was indebted to other entities. It was held that this was not a case in
which court should order security for costs. There was evidence to show that the applicants were in
possession of property worth one billion shillings, which was sufficient to take care of the costs likely
to be incurred.
Failure to deposit Security for Costs

If the security for costs is not furnished within the time fixed, a court shall dismiss a suit unless it is
withdrawn by the plaintiff-O.26 r 2 (1) CPR. Where a suit is dismissed, the plaintiff may apply to set
aside the dismissal and reinstate the suit for hearing if it is proved to the satisfaction of court that
he/she was prevented by any sufficient cause from furnishing the security within the time allowed-
O.26 r 2 (2) CPR.
In the case of Bank Arabe Espanol vs. Bank of Uganda SCCAnO. 8/1999 the second appeal arose
from the decision of the Court of appeal overturning the high court’s decision and orders reinstating
the appellants suit against the respondent bank of Uganda. The suit had been dismissed on ground
that the appellant failed to deposit security for costs within the period ordered by the High Court.
Held that the evidence showed the appellant deposited a bank guarantee due to the mistake belief that
the guarantee would suffice as security for costs by the high court. That taking into account the
bureaucratic delays in obtaining payment of money from the appellant at its offices in Spain and the
difficulty in transferring money internationally, the appellant would have required more time to
comply with the high court order for a cushy deposit.
That under O. 23 r 2 (2) CPR order of dismissal of a case can be set aside for sufficient cause. The
circumstances of the case showed that the appellant was prevented by sufficient cause from
depositing the money for security of costs within the time allowed because it was under a mistake
belief that the guarantee would suffice as security for costs
That while the court’s power to dismiss a suit under O.23 r (1) is automatic upon the plaintiff failure
to comply with the order for security for costs, the court’s power to reinstate such a dismissed suit
under rule (2) is discretionary. The Supreme Court found that the judge properly exercised her
discretion by setting aside the dismissal of the appellant’s suit.
Security for Costs and Further Security for costs in the Court of Appeal.
Under rule 105 of the Court of Appeal Rules 1996 appellants to the court of Appeal of a civil appeal
are required to lodge Ushs. 200,000/- in court as security for costs. Court may on the application by
the respondents to a cross appeal direct the cross appellant to lodge Ushs. 200,000 as security for
costs. Court may at any time if it thinks fit direct that further security for costs be given.
In the case of Transroad Ltd vs. Bank of Uganda SCCA No. 43/95, Order JSC held that the rule
104(3) of the Court of Appeal Rules 1996 permit court to move an order for security for costs ‘at
anytime’’, if it thinks fit. But the law is now well settled that such order should not result in prejudice
to the respondent. An inordinate delay may cause such a prejudice and the onus is on the applicant to
show that a delay in applying for security for costs has not prejudiced the party being asked to
provide further security for costs. In the instant case there was delay for over 3 months and the
application was made after the appeal had already been set down for hearing. It was heard 11 days
before the appeal was due to be heard. The delay in question was not explained by the applicant. In
the circumstances the applicant had failed to discharge the onus to prove that the delay would not
prejudice the respondent if the order for further security for costs was granted. On those grounds the
application will be dismissed. (C.f Premchard Raychand ltd vs. Quarry Services of E.A Ltd [1971]
EA 172)
In the case of Lalji Ganji vs. Nathoo Bassanjee (1960) E.A 31 it was held that;
1. The burden lies on the applicant for an order for further security and he cannot merely by
averring that the security already deposited for costs is inadequate or because the costs in the
court below ordered in his or her favaour have not yet been paid impose any obligation upon
the court or the judge or the registrar to grant his application. The order is given at the
discretion of court exercised judicially.
2. The word ‘at any time’ do not preclude court from taking into account any delay by the
applicant in making his application as a factor to be placed in the scales whose may
determine whether or not court will exercise its discretion in the applicant’s favour.
3. The words ‘at any time’ means that no lateness in lodging an application shall in itself
preclude court from granting the application.
Security for Costs and Further Security for costs in the Supreme Court.
Under rule 101 of the Supreme Court Rules 1996 appellants to the supreme court are required to
lodge Ushs. 400,000 as security for costs. Court may on application by the respondent to a cross
appeal direct a cross appellant to lodge Ushs. 400,000 as security for costs. Court may at any time if it
thinks fit direct that further security for costs be given.
In the case of Atul kumar Patel vs. American International Banking Corp SCCA no. 9/89 Order
JSC, held that the applicant had shown good cause why he should have security for costs. The fact
that the respondent was a foreign corporation with no known assets in Uganda and considering the
fact that the sums earlier deposited had been made inadequate by the subsequent currency reform
were all the grounds for court to order a further security for costs.
In the case of Kakooza Jonathan & Anor vs. Kassala Co-operative Society Ltd SC CAppln. No.
13/2011 an application was brought under rule 101(3) of S.C Rules that the court may at anytime if
the court thinks fit direct that further security for costs be given and may direct that security be given
for payment of past costs relating to matters in question in the appeal. Held that it is clear that the sub
rule gives court discretion to give security. That in an application for further security for costs or past
costs the burden lies on the applicant to show why that relief should be granted. That in the case of
Lalji Gangji vs. Nathoo Vassanjee (1960) E.A 315 the court stated that the position thus; ‘The burden
lies on the applicant for an order for further security, as it normally lies on any applicant to a court
for any relief, to show cause why that relief should be granted, and he cannot, merely by averting that
security already deposited for costs of the appeal is inadequate, or that costs in the action below,
ordered in his favour, has not yet been paid, impose any obligation upon the court or judge or
registrar to grant his application…’’That security for costs under rule 101(3) of supreme court was
not intended to be a substitute for an alternative to execution. In Lalji Gangji vs. Nathoo Platt JSC
stated; ‘As the authorities show non payment by itself is not sufficient. What was needed was failure
of the execution, or some step to show that the appellant cannot pay, or an admission on his part’’
That in the instant application there was no admission on part of the respondent in the instant
application. Therefore, in the circumstances execution should have been taken to recover the costs.
In the case of Good Man Agencies Ltd vs. Hasa Agencies SCCAppln, No. 1/2011 the bench of three
justices ordered the respondent to give security for costs. In reaching this decision, the court was
influenced by four factors, namely (1) that the respondent in that application had no known address in
Uganda except his counsel (2) that the respondent had no known assets in Uganda or Kenya (3) that
the respondent had suggested before a single justice that he would offer Ushs.700,000,00/- as the
security for costs and (4) that contrary to the opinion of a single judge, prima facie their doubts about
the success of the respondent’s appeal.
Security for costs in Election Matters.

S. 55 of Parliamentary Elections Act 2005 requires any candidate who requests a recount of votes to
deposit with the chief magistrate a security for costs of thirty currency points. Under S. 56 the monies
deposited as security for costs shall as far as necessary be paid out to a candidate in whose favour the
costs are awarded and if the deposit is insufficient to cover the costs, the court shall order the liable
party to pay the balance.
3 ARREST AND ATTACHMENT BEFORE JUDGMENT 0.40
A party may wish to take out his relief in the interim because is of the view that time taken in
conducting the proceedings may affect his rights adversely. So where court is satisfied that the ends
of justice require, may order a defendant to find security or produce any property belonging to him or
her and place it to the disposal of the place or order the attachment of such property before a suit is
actually determined before judgment is finally given by court.
Section 64 of the Civil Procedure Act provides that in order to prevent the ends of justice from being
defeated, the court may, if it is so prescribed—
a) issue a warrant to arrest the defendant and bring him or her before the court to show cause
why he or she should not give security for his or her appearance, and if the defendant fails to
comply with any order for security commit him or her to prison;
b) direct the defendant to furnish security to produce any property belonging to him or her and to
place the same at the disposal of the court or order the attachment of any property;
Order 40 r 1 CPR provides that where at any stage of a suit, other than a suit of the nature referred to
in section 12(a) to (d) of the Act, the court is satisfied by affidavit or otherwise—
a) that the defendant with intent to delay the plaintiff, or to avoid any process of the court, or to
obstruct or delay the execution of any decree that may be passed against him or her—
b) has absconded or left the local limits of the jurisdiction of the court;
c) is about to abscond or leave the local limits of the jurisdiction of the court; or
d) has disposed of or removed from the local limits of the jurisdiction of the court his or her
property or any part of it; or
e) that the defendant is about to leave Uganda in circumstances affording a reasonable
probability that the plaintiff will or may thereby be obstructed or delayed in the execution of
any decree that may be passed against the defendant in the suit, the court may issue a warrant
to arrest the defendant and bring him or her before the court to show cause why he or she
should not furnish security for his or her appearance.
However the defendant shall not be arrested if he or she pays to the officer entrusted with the
execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim;
and the sum shall be held in deposit by the court until the suit is disposed of or until the further order
of the court.
Court may order a defendant who fails to show cause to deposit money in court or property sufficient
to satisfy the plaintiff claim or furnish security for his appearance any time when called upon during
the pendency of the suit. –O.40 r 2 CPR.
Under O.40 r 4 where he fails to furnish security or find fresh security, the defendant may be
committed to prison until the suit is disposed of.
See Pyarali Dakardini vs. Anglo American Amusement Park (1930) 4ULR 28
Mugimu vs. Basabosa [1991] ULSLR 191
Potgieter vs. St Stumbert [1967] EA 609
Order 40 r 5 CPR provides that where at any stage of a suit the court is satisfied, by affidavit or
otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be
passed against him or her—
a) is about to dispose of the whole or any part of his or her property;
b) is about to remove the whole or any part of his or her property from the local limits of the
jurisdiction of the court; or
c) has quitted the jurisdiction of the court leaving in that jurisdiction property belonging to him
or her, the court may direct the defendant, within a time to be fixed by it, either to furnish
security, in such sum as may be specified in the order, to produce and place at the disposal of
the court, when required, the property or the value of the property, or such portion of it as may
be sufficient to satisfy the decree, or to appear and show cause why he or she should not
furnish security.
The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and
the estimated value of the property. The court may also in the order direct the conditional attachment
of the whole or any portion of the property so specified.
In the case of Uganda Electricity Board (In liquidation vs. Royal Van Zanteen (U) Ltd HCMA
0251/2006 an appeal from the ruling and orders of the deputy registrar in which he ordered the
appellant to deposit in court a sum of Shs. 150,000,000 as security within a period of 30 days. In the
alternative it was ordered that the property belonging to the respondent with a forced sale value of
Shs. 150,000,000 be attached in favour of the respondent pending of the main suit. On 13/3/2006 the
respondent filed a suit against the appellant claiming a sum of Shs. 79,933,873 together with interest
thereon and costs of the suit. Hearing was yet to begin but in the course of time, the respondent got to
know that the appellant, a statutory body was in the process of winding up of its operations. The
winding up process included sale of non core assets. The respondent felt that if the suit was
successful, it would be unable to realize the fruits of its judgment hence the application. Justice
Yorokamu Bamwine held that O.36 r 5 (1)(a) provides for instances where the defendant may be
called upon furnish security for production of property. That under this rule, court must be satisfied
not only that the respondent is about to dispose of its assets, but also that the disposal is with intent to
delay or obstruct execution of any decree that may be passes against it. That judging by the
construction of O.36 r 5(1) (now 40 r 5 (1)(a)), its object is to prevent any attempt on part of the
defendant to defeat the fruits of the decree that may be passed against him. The sole purpose of the
attachment before judgment is therefore to give an assurance to the plaintiff that his decree, if made,
would be satisfied. It is a form of guarantee against the decree becoming redundant for want of
property for its satisfaction. That it is the considered view of court that before making an order under
O.36 r 5(1)(a) the court ought to be satisfied not only that the defendant is really about to dispose of
his property or about to remove it from its jurisdiction but also that the disposal or removal is with
intent to obstruct or delay the execution of any decree that may be passed. As the learned editors in
LMJ’s code of Civil Procedure (of India) Vo1. 4 at P.433 state in commentary, ‘The satisfaction must
be of the court as regards these matters and it must be based on some material derived either from
the affidavit of the party, applying (under O.38 r 5) or otherwise. It is no doubt necessary for the
court to state in the order passed (under O.38 r 5) the grounds on which satisfaction is founded, but
there must be some material on record to indicate that the satisfaction was not illusory.’’ That there
was need for evidence to show that the applicant had sold, was selling or was about to sell, its
property with the intent to defeat the respondent’s claim in the event of his suit succeeding or that in
the event of a successful suit, the decree would not be satisfied by the defendant or any other person
on its behalf which evidence is not on record.
In the case of Ssebaduka vs. Warid Telecom Ltd HCMA No. 204/2014 an application brought under
provisions of s.14 (c ) and 33 J.A, 98 CPA, O.41 r 1 and 2 and O.40 r 5 and 12 CPR, seeking a
temporary injunction from disposing off the whole or any part of or parting with possession of the
whole or any part of its property to Bharti Airtel or any other person until hearing or disposal of the
main suit, Alternatively an order directing the respondent to furnish security or to produce and place
at the disposal of court, all its assets and property or the value of all its assets and property to satisfy
the decree that may be passed against in the main suit. Justice Flavia Anglin held that the provisions
of O.40 r 5 (1) CPR have been considered in a number of decided cases. It has been established that
the order provides for attachment before judgment and that ‘it is only available where there is a real
evidence that the respondent is about to leave country, sell the property or delay justice’. See UTL
vs. Justus Ampaire. That in the current case, not only is the respondent about to dispose of the whole
of its property or remove it from the local limits of the jurisdiction of court, but it has been admitted
by the respondent that the company’s shares have been transferred and its infrastructure that include
most have been sold to Eaton Towers Ltd and Bank accounts closed. That according to the case of
Ovation International (India) Pvt Ltd vs. Adverts (Private) Ltd and Another 1969 Comp Cas 569
[Bom] ‘Once the allegations are well founded through affidavit evidence, court is bound to issue an
order to the respondent to furnish security’’. That the applicant in the present case did not specify the
property required to be attached or their estimated value as required under O.40 r 5 (c) CPR, that the
only alternative is for court to order the respondent to pay into court a sum of money considered
sufficient as security to satisfy the claim. Court considered 100million to be sufficient security and
directed the respondent to deposit the sum in court within 2 weeks from the date of the order by way
of bank guarantee.
Order 40 r 6 CPR provides that where the defendant fails to show cause why he or she should not
furnish security, or fails to furnish the security required, within the time fixed by the court, the court
may order that the property specified, or such portion of it as appears sufficient to satisfy any decree
which may be passed in the suit, be attached. Where the defendant shows such cause or furnishes the
required security, and the property specified or any portion of it has been attached, the court shall
order the attachment to be withdrawn, or make such other order as it thinks fit.
Order 40 R 8 CPR provides that where any claim is preferred to property attached before judgment,
the claim shall be investigated in the manner hereinbefore provided for the investigation of claims to
property attached in execution of a decree for the payment of money.
In the case of Stanbic Bank (U) Ltd vs. New Makerere Kobil Station Ltd HCMA No. 565/2010 an
application under O.40 r 8 & 12 CPR for orders that the bus attached by orders of court be released
from attachment. Justice Kiryabwire held that the import of O.40 r 8 is that the same test for release
from attachment under O.22 r 55-57 should be applied. That whether property in possession of the
person at the time of attachment was in his or her possession on his or her own account. That a review
of the bus logbook shows that the bus is owned by the applicant and lease agreement shows that it is
subject of a lease with the applicant bank, so the bank owns the bus. That also as to release from
attachment, it was held in the case of Abby Mugimu vs. Bas Bas [1991] ULSR1 91 at 195 that no
attachment before judgment can issue where it affects the rights of third parties. Clearly that the rights
of applicants under the lease agreement are being affected. Bus was released from attachment.
However in the case of Rev. Ezra Bikangiso vs. New Makerere Kobil Station HCMA No. 10/2010
an application by way of summons brought under O.40 r 8 and 12 CPR for orders that Isuzu bus
attached pending suit be released. Justice Kiryabwire held that any investigation under O.40 r 8 CPR
of property attached before judgment should follow the same investigations and tests set out in O.9
rules 55 and 57 CPR with respect to objections to attachment of property. That there is no
independent evidence brought by the applicant to show that he has actual or constructive possession
of the said bus. That the applicant has failed to establish that on the date of the attachment, he was in
possession either actual or constructive of the said bus.
4. PAYMENT IN COURT.
The rules of procedure allow a defendant / plaintiff who is a defendant to the counter claim who
wishes to settle a claim to pay money into court and this may be done to achieve three things;
1) To put pressure on the plaintiff to accept a settlement,
2) To protect the defendant in the issue of costs
3) To protect the defendant from interest that would have accrued to the property.
A defendant should consider making a payment into court if he or she is advised by his counsel that
there is some prospect of the court finding in favour of the plaintiff at the trial. If the plaintiff does
eventually succeed in his action, the defendant will usually be ordered to pay the whole of the
plaintiff’s costs however by making payment in court, the defendant will cease being liable for any
cost incurred by the plaintiff after the payment in, provided that the amount paid is equal to or exceed
the amount damages plus interest ultimately awarded to the plaintiff at the trial.
O.27 r 1 CPR provides that where any suit is brought to recover a debt or damages, any defendant
may before or at the time of filing his or her defense, or at any later time by leave of the court, pay
into court a sum of money by way of satisfaction, which shall be taken to admit the claim or cause of
action in respect of which the payment is made; ..or he or she may with a defense denying liability
(except in suits or counterclaims for libel or slander) pay money into court which shall be subject to
the provisions of rule 6 of this Order; except that in a suit on a bond, payment into court shall be
admissible in respect of particular breaches only, and not of the whole suit.
Subject to the Civil procedure Act or any other law relating to payment into court, no money or
valuables shall be deposited in court except upon the written order of the court; no money or valuable
deposited in court on a court order shall be paid out of court except in pursuance of a decree or other
order of court-Rule 8 of the Judicature (Court fees, Fines and Deposit) Rules SI 13-3.
Procedure for payment in:

a) Payment must be physically lodged at the registry of the high court;
b) Notice of the payment must be given to the plaintiff and every other defendant-O.27 r 4
c) Where two or more causes of action are joined in one action, the defendant has the following
options; but he must state which option is selected;
i) To make a single global payment in respect of all the causes of action;
ii) To make a single payment in respect of some only of the causes of action, specifying
which ones
iii) To make such individual payment of each cause of action
d) Where the defendant has counter claimed the notice must state whether the payment in has
taken the counter claim into account
e) The defendant must be given written acknowledgement of receipt of the notice by the plaintiff
within seven days of such receipt-O.27 r 7
A plaintiff may accept a payment into court by giving notice to every defendant. Where the payment
in is made before trial, acceptance must be within seven days-O.27 r 7 of notice of payment in where
the payments in comes, provided that the court has not began to give its judgment.
The effect of acceptance of payment in is that the action, or those parts of it covered by the payment
in, is stayed-O.27 r 6(a). Where the acceptance is in relation to the entire plaintiff’s cause of action, or
where it relates to some only, but the plaintiff gives notice abandoning the others, the plaintiff is
entitled to costs up to the date of acceptance-O.27 r 8 CPR.
Generally where the payment in has been accepted, the money may be paid out without leave of
court-O.27 r 5, but in the following cases leave of the court is required;
a) Where money is paid in by some but not all of the defendants-O.27 r 8
b) Where there is a defense of tender before action-O.27 r 3
c) Where a plaintiff is a person under disability (minor or mental patient)-O.27 r 11
d) Money paid into court under an order of the court-O.27 r 10
Where payment into court is refused, expressly or impliedly, and the damages and interest eventually
awarded to the plaintiff at the trial do not exceed the payment in, the court will make a split order
awarding;
a) Costs to the plaintiff up to the date of payment in; and
b) Costs of the defendant after the date of the payment in as, the costs of the trial generally in the
early stages of litigation, a split order will usually penalize the plaintiff heavily in costs-O.27 r
6
Tender before action

It is a defense to a claim for a debt that the defendant tendered the amount of the debt before the
action was commenced-O.27 r 3
The essence of the defense is that the commencement of the action was unnecessary because the
plaintiff refused to accept the amount of the debt, which the defendant tendered, and therefore the
plaintiff should be required to pay the whole costs of the proceeding.
In order to raise the defense, the defendant must plead in his defense.
a) That he made tender of the amount of the debt before the action was filed and
b) That he paid into court an amount equal to or exceeding the amount alleged to have been
tendered, and that the plaintiff was duly notified of such payment in court
Where money is paid into court for payment to a party, it may be paid out under the direction of the
judge / court without a formal order-Rule 11 of the Judicature (Court fees, fines and deposit) rules.
In all cases in which money is paid out of court without a formal order, the judge shall make a note of
the direction given.
CONSLIDATION OF ACTIONS / SUITS AND TEST SUITS
O.11 r 1 provides that where two or more suits are pending in the same court in which the same or
similar questions of law or fact are involved, the court may, either upon the application of one of the
parties or of its own motion, at its discretion, and upon such terms as may seem fit-
a) order a consolidation of those suits
b) direct that further proceedings in any of the suits be stayed until further order.
The rules of court provide that the court may consolidate two or more actions which are pending in
the sense that the court process has been served and judgment has not been entered and satisfied and
where;
a) a common question of law, or fact arises in action
b) the right to relief arise in respect of the same transaction or series of transaction
c) it is otherwise desirable to approve consolidation.
The rules also provide that the court in the consolidation order provide that the proceedings be tried at
the same time, or immediately after one another, or have one stayed until the determination of the
other, or be tried on such other terms as it thinks just.
The courts may usually make these types of orders on application for consolidation:
1) The actions be consolidated, where upon the actions are consolidated into one action and
continue as such, with possibly a common counsel, one set of pleading and a single discovery,
judgment and bill of costs. However the order does not require the different causes of action
arising out of the same transaction be included in one suit.
2) The actions are not consolidated but are heard together with the trial of one immediately
following the other, with separate pleadings, discoveries and judgments. In the case of
TopistaKyebitama vs. DamyanoBatuma [1976] HCB 276 established that where two or more
suits are filed involving the same parties and arising from the same cause of action, they
should either be consolidated for purposes of determining liability or only one of them, first in
point of time be heard first.
Usually any party in the following action, who is not a party in the earlier action, will be permitted to
attend and take part in the earlier trial and cross examine the witnesses and the evidence in the earlier
action may be used in the other separate decisions will be delivered or
3) One action will be heard with the remaining actions stayed and the decision of the first case
governing the others or with any latter case being subsequently heard.
Under the rules of court, the consolidation of actions is now within the discretion of the court or
judge. The discretion of court is unlimited and consolidation may be ordered against the wishes of
the plaintiff. In the case of Stumberg&Anor vs. Potgieter [1970] EA 323 held that consolidation
of suits should be ordered where there are common questions of law or fact; consolidation of suits
should not be ordered where there are deep differences between the claims and defenses in each
action.
It is intended to prevent multiplicity of pleadings. The recent rules of court generally provide the
same grounds for permitting consolidation are applied to the joinder of parties namely;
1) Common question of fact or law
2) Right to relief arising out of the same or similar transactions; of
3) Whether consolidation is proper
4) In cross actions between the same parties arising out of the same matter
5) Same cause of action
6) Consolidation will save expenses
The court however will refuse to consolidate suits when its prejudicial to the plaintiff, impossible to
save expenses, a person is plaintiff in one suit and defendant in another and consolidation will result
into the plaintiff becoming a defendant, different laws applicable, different standard of proof like
fraud cases, when new pleadings required, parties represented by different advocates, relevant matters
arising subsequent to commencement, where actions are already set down for hearing, when different
issues involved
Test suits / Actions

Where two or more persons have sued or been sued separately as under O.1 and could be joined in
one suit, upon application of any of the parties, the court may if satisfied that the issues to be tried in
each suit are precisely similar, make an order directing that the suits be tried as a test case, and
staying all steps in other suits until the selected suit shall have been determined or shall have failed to
be a real of the issues. O.39 r 1 and 2 CPR.
By the agreement of the parties, one action will be heard with the remaining actions being stayed
pending the decision in the test action. To have a test suit / action, all the issues and evidence in the
actions should be substantially the same.
ACTUAL HEARING O.18 & O.15 CPR

After court has disposed off all interlocutory matters it will hear a case beginning with the plaintiff
unless the defendant has admitted the facts alleged by the plaintiff and or raises preliminary objection
that the plaintiff is not entitled to the relief sought-O.18 r 1 CPR.
In the absence of a preliminary objection by the defendant, the plaintiff will proceed to prove his or
her case by giving an opening statement and producing evidence in support of his or her case by way
of documents or oral testimony of the witnesses. The opposite party will also state his or her case and
produce evidence if any. Only parties are allowed to be in court throughout the hearing of the case
while a witness while giving testimony, the other witnesses should not be in court or within the
hearing range.
After all the witnesses have testified, the party who begun will address court generally on the whole
case and particularly on issues framed for resolution citing the relevant supporting evidence and the
law. The opposite party will respond generally on the whole case focusing on issues raised and
particularly the points made by the party beginning. A party beginning may then reply to clarify on
the points raised in response -O.18 r 2 CPR.
In most cases, evidence is given by oral testimony of witnesses in court. The witnesses voluntarily
appear in court on dates fixed for hearing. However in the event that a witness refuse to cooperate, the
party calling the witness is required to inform court and apply for witness summons to compel the
witness to attend court and give evidence or produce documents needed for a trial-O.16 r 1 CPR.
The party applying for witness summons is required to pay into court a sum of money to cover
travelling and other expenses of the witness before summons is granted-O.16 r 2 CPR. Where a
person summoned to attend court and give evidence or produce a document without lawful excuse
fails to comply with the summons or intentionally avoids service, court may issue a warrant of arrest
for that person with or without bail and may make an order for the attachment and sell of his or her
property to meet the costs of attachment and fine which may be imposed under O16 r 10 CPR.
A person summoned shall attend each hearing until the suit is disposed of unless court otherwise
directs. On application of either party, the court may require the person summoned and attending to
furnish security to attend the next or any other hearing or until the suit is disposed of and in default of
his /her furnishing the security, court may order him /her to be detained in civil prison-O.16 r 15
CPR.
The party to the suit who called the witness will examine the witness first. This is known as
examination in chief. Thereafter the opposite party may cross examine the witness (cross
examination) and the other party (1st party) re-examine (redirect) the witness to clarify and correct
any issue raised during cross examination. This is known as re examination.
Leading questions are not allowed during examination in chief. Counsel should endavour to be ass
polite as possible on the witnesses during examination in chief so that they can feel at home in court
and give evidence properly before they are torn down by the opposite counsel in cross examination.
Re-examination should be confined to such matters raised during cross examination only. Either party
may object to any particular question and the court may reject or uphold the objection if there is
sufficient reason for so doing.
The court may recall such remarks as it thinks material in respect of the demeanour of any witness
while under examination-O.18 r 10 CPR. The witnesses in attendance in court give oral evidence or
testimonies which are written down by a presiding judge / registrar in a narrative form and when
completed the notice written are signed at the end by the judge or registrar who also indicates the date
when the evidence was given-O.18 r 4 & 5 CPR.
In certain appropriate cases the court may take evidence by way of affidavit or witness statements
instead of oral testimony.
In the case of Spear Motors Ltd vs. Attorney General & 2 Ors HCCS No. 692/2007 Justice Irene
Mulyagonja held that there are no rules of court in Uganda to guide the use of witness statements.
However they have been used in the commercial court as far back in 2004 and the practice had
developed as to how they are employed. That the genesis of the use of witness statements in the
commercial court is to be found in the constitution-6. ‘Rule 5 thereof provides that the ordinary rules
of procedure of the High court will apply to all commercial actions, subject to the clarification set
forth in the practice direction. It is further provided that the procedure in and the progress of
commercial action shall be under the direct control of the commercial judge who will, to the extent
possible, be proactive. On the practice that has developed from this rule is the use of witness
statements and may disputes have been concluded using them. The practice was endorsed by the
judge of this court and administrative Circular No. 1 of 2012 was issued by the Head of the Court on
16/01/2012 and posted on the doors of the court here.
Where a witness is about to leave the jurisdiction of court or for any other sufficient cause shown to
the satisfaction of court, court may take evidence of a witness immediately upon the application of
any arty or witness at any time after institution of the suit. The evidence so taken is also signed by the
judge and may be read at any hearing of the suit-O.18 r 12 CPR.
The court may at any stage of the suit inspect any property or thing concerning which any question
may arise and record such remarks as it thinks material to the question. This is known as visiting the
locus in quo (scene in dispute)-O.18 r 14 CPR.
In the case of David Acar & 3 Ors vs. Alfred Acar Aril [1982] HCB 60, it was held that when court
deems it necessary to visit the locus in quo then both parties and there witnesses must be told to be
there. When they are at the locus in quo it is not a public meeting were public opinion is sought. It is
a court sitting at a locus in quo. The purpose of the locus in quo is for the witnesses to clarify what
they stated in evidence in court. When a witness is called to show or clarify what he /she stated,
he/she must do so on oath. The other party must be given the opportunity to cross examine him /her.
The same opportunity must be extended to the other party. Any observation by the court must be
recorded and must form part of the proceedings.
In the case of Alice Namisango vs. Galiwango [1986] HCB 37 it was held that a visit to a locus in
quo is intended to enable court to understand and follow the evidence adduced by the parties with
regard to the disputed boundaries or other subject matter. It is not intended to give a trial judge,
magistrate or registrar an opportunity to carry out a personal investigation of the case. It is an
essential trial procedure as it may involve the recording of evidence or interviewing of witnesses. It is
a procedure which should not be indulged in by the appellate courts save in exceptional
circumstances because its equivalent to taking additional evidence which is not on record of appeal.
In the case of Brukana Jamagara vs. Obbo-Ogolla [1976] HCB 31 it was held that the procedure
when visiting the locus in quo is for the court to make a note of what took place during that visit in its
record and this note should be either agreed to by the advocates or at least read out to them.
In the case of Yeseri Waibi vs. Edias Byandala (1982) HCB 28 it was held that the usual practice of
visiting the locus in quo is to check on the evidence given by the witnesses and not fill gaps for then
the trial magistrate may run risk of making himself a witness in the case. Such a situation must be
avoided. That the trial magistrate must take note of what takes place at the locus in quo and if a
witness points out any place or demonstrates any movement to the court, then this witness should be
recalled by the court and give evidence of what occurred.
Where a judge is prevented by death, transfer or other cause from concluding the trial of the suit, his
or her successor may deal with the evidence taken down so far as if it was taken by him /her or under
his or her directions and may proceed with the suit from the stage at which his/her predecessor left it.
This also applies to suit transferred or withdrawn by the high court under section 18 CPA-O.18 r 11
CPR.
In practice the proceedings of the court are written down by the presiding judge /registrar at every
hearing session until the case is closed. The notice written down by the judge or registrar constitute
the official record of the proceedings in respect of each particular suit or application. The notice are
confidential and the parties are not allowed to read them until after judgment has been given.
The notice is put in the case file together with the pleadings. The case file is kept by the clerk/judge/
registrar in the relevant registry. It is produced at every other hearing session of the case so that the
judge or registrar can continue to take notice. At the end of each hearing notice, the judge or registrar
signs at the end of the notice and writes the dates on which the hearing session was held.
After all the parties and their witnesses have testified, the advocates for the parties may make oral
submission on the issues farmed for resolution. The oral submissions are also written by the judge or
registrar. Alternatively and with leave of court the advocates may file written submissions which are
received by the clerk, judge o registrar in the relevant registry. The written submissions are put in the
case file by the clerk and the file is forwarded to the judge or registrar for consideration and further
management of the case.
After considering all the pleadings, the evidence as presented by the parties, the submission by the
advocates for parties and the relevant law applicable, the judge or registrar writes a judgment or
ruling in respect of the suit or application respectively. The judgment or ruling is read out to the
parties usually on notice. A judge or registrar signs at the end of the judgment or ruling and writes the
dates on which it was made immediately after reading it. That date is also the date of the decree or
order respectively and the time prescribed for appealing begins to run from that date. A copy of the
judgment or ruling is put on the case file which is forwarded to the registrar for taxation of costs and
execution (enforcement of judgment/ ruling) –Sec 25 CPA and O.18 CPR.
After the judgment, any party to a suit or application or his/her advocate may write a letter to the
registrar and requests for a typed record of the proceedings and a copy of the judgment usually at the
cost of the party requesting. The record of proceedings is a prerequisite for filing an appeal.
In addition to the taking written notices, the court may also make a voice recording on audio tapes at
every hearing session. This is practiced especially in the Supreme Court, constitutional court, court of
appeals, commercial court and in some high profile cases of public interest. They are kept by the
clerk /judge /registrar until after hearing is closed. The voice recordings are played and transcripted.
The transcripts are crossed by the judge / registrar thereafter they are kept in the case file in the
registry. After judgment has been given any party or his or her advocate may write a letter to the
registrar requesting for a copy of the transcript usually at the cost of the person requesting.
A Summary of how a case progresses through court

1. A party who wants to institute a case or his advocate goes to the relevant registry of the court
and files the case
2. The registry staff opens a court file for the case (case file) and assess the court fee chargeable
for filing the case in accordance with a fixed schedule of court fees set by the court
3. The filing fees are paid in a bank by a party instituting the case who is issued with a general
receipt of court upon production of proof of payment of fees in the bank usually a copy of the
assessment form signed by the receiving bank.
4. The registry staff give the case a number and forwards it to the registrar to review pleadings,
sign and seal them if properly drawn
5. If pleadings are not properly drawn they may be rejected, if they are appropriate they will be
signed and sealed by the registrar who also signs and seals the summons to file a defense.
6. The summons together with the pleadings is served on the opposite parties by the party who
filed the case
7. The opposite parties file their defenses or other relevant reply in response to the summons and
pleadings served on them
8. The party who instituted the suit may reply to the defense
9. Unless interlocutory applications are made, the case is sent for mandatory mediation
10. Upon failure of mediation, scheduling conference is fixed by the registar in consultation with
the judge’s clerk. A hearing notice detailing the date and time of the mention or scheduling
conference is signed, sealed and issued by the registrar. The case is included in the subsequent
cause list published and released to all court users.
11. The case file is forwarded to the relevant judge to enable him to study the case prior to the
scheduling conference
12. At the scheduling conference the judge helps the parties to agree on the issues in dispute and
discuss the possible settlement options. Where settlement is not possible, the judge sets a
timetable for the subsequent management of the case
13. Ultimately the case comes for hearing
14. Following completion of hearing of the case, a judgment is given
15. The successful party extracts a decree from the judgment and forwards it to the other party to
confirm its terms by endorsing or signing it before forwarding it to the registrar to sign and
seal it
16. The successful party draws and files a bill of costs which is taxed by the registrar at a taxation
hearing date. Thereafter the successful party extracts a certificate of taxation indicating the
amount of costs allowed
17. If the losing party fails or refuses to pay all sums due under a decree and certificate of taxation
then the successful party may apply to the registrar for execution of the decree
18. The registrar issues a warrant of execution and appoints a bailiff to recover a sum owed
19. After the bailiff’s action, the bailiff files a return at the court providing details of what action
has been taken and an account of the monies recovered if any
20. Unless the judgment is set aside or appealed, the case file is closed and archived at the court.
Topic VII
JUDGEMENTS-S.25 CPA
Section 25 CPA provides that court after case has been heard, shall pronounce judgement, and on
judgement decree shall follow; except that if a defendant does not enter appearance as may be
prescribed, the court may give judgement of a plaintiff in default.
0.21 r 1 provides for judgement, that in a suit where hearing is necessary the court to pronounce
judgement in open court either at once or on some future date notice of which shall be given to the
parties or their advocates.
0.21 r 3 the judgement pronounced by the judge who read it shall be dated and signed by him/her in
open court at the time of pronouncing it and the judgement pronounced by judge other than a judge
by whom it was written must be dated, countersigned by him in open court at the time of pronouncing
it. A judgement once signed shall not afterwards be altered or added as otherwise provided in section
99 CPA or review. Sec.99CPA provides for amendment of judgements, decree or orders in case of
clerical or mathematical mistakes in judgements, decree or orders, or errors arising in them from any
accidental slip or omission.
The form of judgement is provided for under 0.21 r 4 that judgement in defended suits shall contain a
concise statement of the case, points for determination, decision thereon and reason for such decision,
and 0.21 r 5 the court is required to state its decision on each issue with reason unless the finding
upon anyone or more issue is sufficient for the decision of the case.
DECREE
Section 25 CPA provides that “and on that judgement a decree shall follow”. Section 2 CPA defines
a decree as a formal expression of an adjudication which, so far as regards the court expressing it,
conclusively determines the rights of the parties with regard to any of the matters in controversy in
the suit and may be either preliminary or final. A Decree is further defined by Osborne Dictionary to
mean an order court pronounced on the hearing of the suit.
In the case of Attorney General vs. Goodman Agencies Ltd & Ors M.A 361/2015 held that the law
is well settled that only a decree holder is entitled to the fruits of judgement. A decree holder is
defined under section 2 (d) of the civil procedure Act. Section 2(c) defines a decree and under section
25 CPA a decree follows judgement.
The contents of a decree a provided for under 0.21 r 6. Sub rule 1 provides that a decree shall agree
with the judgement, it shall contain a number of suits, the names and description of the parties, the
particulars of the claims and shall specify clearly the relief granted or other determination of a suit. In
the case of Bamwite vs. Patel HCMA No. 188/2014 Madrama J held that a perusal of the decree
extracted shows that it does not conform to the consent judgement contrary to Order 21 r 6(1) CPR
which is mandatory and in the premises the decree cannot stand and struck off the record for non
compliance with Order 21 r 6(1) CPR.
Preparation of a decree and orders is provided for under 021 r 7.1) it shall bear the date on which the
judgement was delivered, 2) it shall be the duty of the party successful in the suit to prepare without
delay a draft decree and submit it for approval to the opposite party to a suit who shall approve it with
or without amendment, reject it without undue delay. If the draft is appropriate it is submitted to the
registrar who it is satisfied that it’s drawn up in accordance with the judgement shall sign and seal it
accordingly.
If the parties and the registrar do not agree upon the terms of the decree then shall be settled by the
judge who pronounced the judgement and the parties are entitled to be heard thereon if they so desire.
The rule has been considered in Eastern Province Bus Co. vs Bibi (1971) ULR 87- court found that
it’s the duty of the successful party to have in the first instance prepare the draft decree but if he fails
to do so and the other party desire to appeal against the judgement, the party will have to first the
decree extracted. This case considered the issue of preliminary decree and final decree and it
observed that in the case where liability had been determined first and quantum of damages later, the
plaintiff was entitled to obtain a preliminary decree first and the final decree upon determination of
quantum of damages
This duty of extracting a decree has also been considered in Asdi Weke vs Livingstone Ola (1985)
HCB 52 court found that the duty of extracting a decree is imposed upon a successful party because
it’s presumed that he will be anxious to execute the decree. The non-anxious party to appeal also has
a duty to take necessary part to extract decree. This includes taking or extracting a decree which is a
pre requisite for an appeal
However it is no longer a requirement to extract a decree before commencing an appeal. In the case
of Byekwaso & Anor vs. Ndagire HC Civil Appeal No. 078/2012 Justice Percy Night Tuhaise
stated that it has long been a requirement of the law, as held in W.T.M Kisule vs. Nampewo [1984]
HCB 55, Yoana Kakuze vs. Victoria Nakalembe [1988-1990] HCB 138 and Robert Biiso vs. May
Tibamwenda [1991] HCB, 92 that failure to extract a formal decree before filing the appeal was a
defect going to the jurisdiction of court and render the appeal incompetent. That the foregoing
provision was based on section 220(1) MCA. All of them were made before the current constitution
which was promulgated in 1995. This legal position appears to have changed in light of Art. 126(2)
(e) of the said constitution which enjoins courts to administer substantive justice without undue
regard to technicalities. That it has been since been held by court of appeal in Banco Arabe Espanol
vs. Bank of Uganda Civil Appeal No. 42/1998 that the extraction of a decree was a mere technicality
which the old municipal law put in way of intending appellants and which at times prevented them
from having their cases heard on the merits, and that such a law cannot co exist in the context of
Article 126(2)(e) of the constitution. That the position was maintained by the court of appeal in
Standard chartered bank (U0 Ltd vs. Grand hotel (U) Ltd Civil Appeal No. 13/1999. The judge held
that the extraction of a formal decree embodying the decision complained of is no longer a legal
requirement in the institution of an appeal. That the court in the cited Banco Arabe Espanol case
stated that an appeal by its very nature is against the judgement of a reasoned order and not a decree
extracted from the judgement or the reasoned order. Section 220(1)(a) MCA is appearing now in
conflict with the constitution which takes precedence as supreme law of the land. Besides, O.21 r 7(3)
CPR requires magistrate who pronounces the judgement to draw up the decree and to that extent the
magistrate’s failure to extract decree should not be visited on the appellant.
From judgement decree follows
From interlocutory application-Ruling follows
From ruling-orders
COSTS-S.27 CPA
After judgement has been given in an action, the judge will have to deal with the matter of costs or to
determine how they are borne i.e. whether a particular party must pay his own costs or have them
paid by the other side and on what basis they can be assessed and paid. Practically a party awarded
costs will not obtain from the other side all expenses he/she has incurred but only so much as its
properly allowable on the particular basis which they a assessed. What is considered is the incidence
and assessment of costs
Generally speaking a right to costs against another party only arises after court has made an order for
costs. Exception
1. Upon discontinuance/ withdraw of an action without leave of court
2. Upon consent of the parties where a party accepts payment in satisfaction of a claim inclusive
of costs otherwise whenever a case comes for determination, it has to make an order for costs
as borne.
Costs mean those expenses scrutinised and allowed by a taxing master in accordance with the
taxation of costs rules, section 27(1) CPA provides that it is subject to such conditions as limitations
as may be prescribed and with the provisions of any Law for the time being in force, the costs of and
incidence of all suits shall be in the discretion of court or judge and the court or judge shall have a full
power to determine by whom and of what property and what extent such costs are to be paid and to
give all the necessary direction for the purposes aforesaid the fact that the court or judge has no
Jurisdiction to try the suit shall be no bar to the exercise of such powers provided that costs of any
action, cause or other matter or issue shall follow the event unless the Judge or court for good reason
shall order.
In the case of Col.Dr.BesigyeKiiza v Museveni YoweriKaguta, ElectoralCommission ((Election

Petition No.1 Of 2001)) [2001] UGSCODOKI, CJ (by then) held that it is well settled that costs
follow the event unless the court orders otherwise for good reason. The discretion accorded to the
court to deny successful party costs of litigation must be exercised judicially and or good cause. Costs
are an indemnity to compensate the successful litigant the expenses incurred during the litigation.
Costs are not intended to be punitive but a successful litigant may be deprived of his costs only
exceptional circumstances. See Wambugu vs. Public Service Commission (1972) E.A. 296.
In awarding costs, the courts must balance the principle that justice must take its course by
compensating the successful litigant against the principle of not discouraging poor litigants from
accessing justice through award of exorbitant costs.
That in the present petition, he was of the considered opinion that the interests of justice required that
the Court exercises its discretion not to award the costs to the Respondents. That this was a historic
and unprecedented case in which a presidential candidate who is a serving President was taken to
court to challenge his election. The petition raises important legal issues which are crucial to the
political and constitutional development of the country. In a sense, it can be looked at as public
interest litigation. It promotes the culture of peaceful resolution of disputes. The petition was not
frivolous or vexations as the Petitioner succeed on issue No.1 and No.2, the petition was therefore of
great public importance in the history of Uganda. In several cases of significant political and
constitutional nature, the court has ordered each party bear its own costs. Accordingly each party
should bear the costs of litigation in this petition.
In the case of Paul Mwiru v Hon Igeme Nathan Nabeta Samson & others Election Appeal No.
6/11 Byamugisha JA held that the law is settled that costs in litigation follow the event and a
successful party is entitled to costs except for good reasons connected with the case. The decision to
award or not to award is within the discretion of the court which tried the case. Normally an appellate
court will not interfere with the exercise of discretion unless it is shown that wrong principles were
followed by taking into account an irrelevant factor or failing to take into account a relevant factor.
That in the case of Software distributers (Africa) Ltd & Anor vs kamboha Perez CA no. 07/06
this court said;
“We agree with the statement of the law as cited by both counsel that an appellate court will not
interfere with the exercise of discretion by a lower court unless it is clearly shown that the exercise
was judicially or wrong principles were followed. If there are grounds to support the exercise by the
trial judge of the discretion he or she purports to exercise the question of sufficiency of those grounds
for this purpose is entirely a matter for the trial judge to decide, and the appellate court will not
interfere with the discretion. It is immaterial that the appellate court would have exercised its
discretion differently.” That section 27 CPA governs the award of costs in civil matters in general.
The section has a proviso which states that: “provided that the costs of any action, cause or other
matter shall follow the event unless the court or judge shall for good reason otherwise order.” That in
election matters the court determining who should bear the costs of an election is guided by rule 27 of
the parliamentary petition Rules SI.141-2 which states as follows;
“All costs of and incidental to the preservation of the petition shall be defrayed by the parties in such
manner and in such proportions as the court may determine.” That the trial judge in determining how
costs should be defrayed said;
‘‘Ordinarily, costs of any action should follow the event. To that extent, I would have awarded 75%
costs to the 1st and 3rd respondents and 25% costs to the petitioner given that he was successful
against the 2nd respondent on issue No. 3. However, I am aware that petitions are matters of national
or political importance for which court should be hesitant to award costs. I am mindful of the
considerations of Bamwine PJ who, in Kadama Mwogezaddembe v Gagawala Wambuzi Election
Petition No. 2 of 2001 held: ‘There is another dimension to such petitions; the quest for better
conduct of elections in future...keeping quite over weaknesses in the electoral process for fear of
heavy penalties by way of costs in the event of losing the petition.,. would serve to undermine the very
foundation and spirit of good governance.’ Furthermore, in the present case very pertinent issues
were diligently raised and prosecuted in a remarkably expeditious manner. A party that exhibits such
judicious conduct of their case should be applauded and need not, in my view, suffer costs.
Particularly so, in an election that by law should be expeditiously prosecuted. Consequently, in
exercise of the court’s discretion, i do refrain from making any order as to costs. Each party shall
bear their costs.’’ That the trial judge gave reasons for the exercise of the discretion and the reasons
given were not erroneous in law.
In the case of Departed Asian property Board vs Jaffer Brother Ltd SCCA N0. 9/1998
Kanyeihamba JSC held that although courts have a discretion as to awarding of costs, it’s a general
rule of law and practice that costs should normally follow the event of the suit. That the principle
established in JB Kohil and others v Bachulal popatal (1947) EA 219 where court said; “having
regard to the above authorities it seems to be that were a discretion as to costs has been exercised by
the Judge his discretion is impeachable unless it can be shown to have taken into consideration
matters which are irrelevant to the issue in the case or non-existent. Further an appeal would be
entertained from the exercise of the discretion as to costs where court of appeal is satisfied that the
lower court applied wrong principles of law” That the ground advanced on behalf of the appellant
that the court of appeal by not stating categorically that there was or there was not a cause of action
against the appellant, the appellant had won that aspect of appeal is not convincing. The appellant was
joined for a different reason and on a different criterion. That the trial judge was wrong in principle
and in the justice of the case when he awarded costs to the defendants who had been joined in the suit
against the wishes of the respondent.
In the case of UDB vs Muganga Construction ( 1981) HCB 35 in a trial for the case, the parties
agreed that the sum claimed in the plaint was incorrect, on ascertainment of correct sum which was
less than the original claim in a consent judgement was entered for the plaintiff for the same. The
parties agreed on the incidence of costs. The plaintiff argued that he was entitled to his cost while the
defendant contended that each party should bear its costs since the plaintiff had claimed a wrong
amount. The court found that section 27 (1) CPA provided that costs should follow the event unless
the court orders otherwise. The Act gave the judge discretion but it had to be exercised judicially. The
court found that a successful party can only be denied costs if it’s found that but for his conduct the
action couldn’t have been brought. The costs follow the event even where a party succeeds only in the
main purpose of the suit. In the case the plaintiff had stated its claim 93% correct the defendant
themselves didn’t know the exact amount owing nor did they pay court a smaller sum which they
admitted to be owing, that there was no good reason for denying the plaintiff bank costs.
In the case of UTC VS Owuto (1985) HCB 27 in the case the judge struck out a plaint. He did not
award costs to the appellant for reason that counsel did not apply for costs. On Appeal the appellant
court found that costs are in the discretion of court under section 27 CPA that there should be some
grounds upon which the trial judge would exercise this discretion and the adequacy shouldn’t be a
matter for the appellant court to interfere. The court found that the reasons given by the judge that
counsel for the applicant did not apply for costs did not constitute a good reason within the meaning
of the rule and shouldn’t be regarded as discretion exercised judicially and there was no justification
for depriving the appellant of his cost.
The costs must be awarded by court otherwise no such can be taxed by a taxing master. In the case of
Rwantale vs Rwabutonga (1988-90) HCB100 this case court found that the chief registrar had no
jurisdiction to tax a bill of cost where none was awarded by the court.
Under O. 21 r 8 CPR, the decree or order shall not state the amount of the costs, which, after they
have been taxed or otherwise ascertained, shall be stated in a separate certificate to be signed by the
registrar, or, in a magistrate’s court, by the magistrate.
Costs generally involves professional fees of engaging an advocate otherwise all instruction fees
provided for by the Advocate Act and computed in accordance with the Advocates (Remuneration
and Taxation of Costs) Rules provides for instruction fees, drafting, drawing and perusing documents
and handling both contentious and non-contentious matters.
Costs are assessed by the court through a process called taxation of costs done by an officer of court
called a taxing officer. In the case of the High court is the registrar and magistrate court is the
magistrate. The process of taxing begins with a party entitled to costs presenting a bill of costs which
is an invoice that shows the sums due to the party entitled to cost under the order of court. The bill of
costs will show professional charges and actual disbursement laid down in the separate column and
must be cast i.e. sums there in must be totalled before the bill laid for taxation. Costs may also
involve expenses or recovery of reimbursements like court fees for filling a suit, travel expenses for
witnesses or counsel wherever applicable, telephone calls and all expenses admitted in court as
reasonably following from the action.
Value Added Tax is shown on the bill at the end separate. Taxation proceedings are commenced in
court by issuing a taxation notice stating the day and time for taxation which is served on all persons
entitled to be heard. If any party who has been duly notified doesn’t attend within a reasonable
period, the taxing officer may proceed with the taxation expert.
The process conducted in an informal way and when the queries are settled the casting and summary
must be completed them the bill will be left with the taxing officer who determines the bill and issues
a certificate of taxation stating the amount fixed.
The procedure discussed in Evalist Nyanzi vs Zava (1983) HCB82 in which notice of taxation must
be given in all case except a defendant against whom costs a being taxed in case in which he did not
appear either personally or through an advocate. The court found that the taxing officer sits as a court
before whom parties lead evidence to prove or disprove costs and he has to make his ruling or order.
The court found that the taxation proceedings are therefore civil proceedings and a taxation notice is a
summons. Any person disgruntled by an order of a taxing master may appeal there from a judge.
Costs do not have a limit s.27 CPA. In the case of Arnest Ato vs Tom Alwala (1986) HCB 85 Court
found that costs have no limit, that a magistrate court can award costs which exceed the pecuniary
jurisdiction of the presiding magistrate provided they were incurred in the course of litigation.
In the case of Makula International Ltd vs Cardinal Nsubuga (1982) HCB 11.C.A (UG) 1. It was
held that the court would follow the principles enunciated by the court of Appeal in Premchad
Raichad Ltd and Anor vs Quarry Services of East Africa No.3 (1972) E.A 162 namely;
a) The costs can’t not be allowed to rise to such a level as to confine access to the courts to the
wealthy.
b) That a success litigant ought to be fairly reimbursed for costs he has incurred.
c) That the general level of remuneration of advocates must as such to attract recruits to the
profession.
d) That so far as practical here there should be consistence in the awards made and having
considered recent awards.
Interests-s.26 CPA
Section 26 CPA provides for award of Interests. Provides as follows;
(1) Where an agreement for the payment of interest is sought to be enforced, and the court
is of opinion that the rate agreed to be paid is harsh and unconscionable and ought not
to be enforced by legal process, the court may give judgment for the payment of interest
at such rate as it may think just.
(2) Where and insofar as a decree is for the payment of money, the court may, in the
decree, order interest at such rate as the court deems reasonable to be paid on the
principal sum adjudged from the date of the suit to the date of the decree, in addition to
any interest adjudged on such principal sum for any period prior to the institution of the
suit, with further interest at such rate as the court deems reasonable on the aggregate
sum so adjudged from the date of the decree to the date of payment or to such earlier
date as the court thinks fit.
(3) Where such a decree is silent with respect to the payment of further interest on the
aggregate sum specified in subsection (2) from the date of the decree to the date of
payment or other earlier date, the court shall be deemed to have ordered interest at 6
percent per year.
In the case of Lwanga vs. Centenary Rural Development Bank [1999] 1 E.A 175 CA, Okello JA
stated; ‘
‘‘A proper construction of section 26(2) of the Civil Procedure Act would show that it
empowers court to award three types of interests at the rate it deems reasonable:
1. Interest adjudged on the principle sum from the period prior to the institution of the
suit. Here, the court must first decide on the evidence, the question of award ability of
this interest and on the rate at which it is to be awarded if any.
2. In addition to that, Interest on the principle sum adjudged from the date of filing the
suit to the date of the decree. Here, the court decides at its discretion which must be
made judicially, the rate of interest to be awarded
3. Further to the above, Interest on aggregate sum so adjuged from the date of the decree
till payment in full.
That OGUS ON THE LAW OF DAMAGES at page 100 rationalises interest in two ways;
(1) That the plaintiff is thereby being compensated for being kept out of his money. He
has been deprived of the use of his money from the time he incurred his loss. On
that basis, interest is to run from that date
(2) That the defendant wrongfully withheld the plaintiffs money. The emphasis here is
on the defendant’s wrongful withholding of the plaintiffs money. On that basis,
interest is to run from the date when the defendant ought reasonably to have settled
the plaintiffs claim. This is rather punitive.
That it is clear from the above that whether or not interest is payable prior to the date of the suit
depends on the evidence available. That is why section 26(2) referred to that type of interest as
‘interest adjudged’. That in the cases of wrongful dismissal, interest runs from the date of dismissal.
That in the case of Bold v Brough, Nicoleson [1963] 3 ALLER 849 it was held that in the case of
unlawful dismissal, the interest payable should flow from the date of dismissal till payment in full.
In the case of Kizza Ssemberege vs. Motor Centre E.A Ltd HCCS No. 0369 of 2011 Justice
Madrama stated that the power to award interest is discretionary and is based on section 26 of the
Civil Procedure Act particularly section 26(2). That the question is what reasonable interest is as far
as commercial transaction is concerned? That in the case of Riches v Westminister Bank Ltd [1974] 1
ALL ER 467 HL at page 472 Lord Wright held that:
‘The essence of an interest is that it is a payment which becomes due because the creditor has not had
his money at the due date. It may be regarded either as representing the profit he night have made if
he had the use of the money, or, conversely, the loss he suffered because he had not that use. The
general idea is that he is entitled to compensation for deprivation.’’
That in assessing the rate of interest the court should be conscious of the market rates for lenders and
traders. Secondly in the case of Tate & Lyle Food and Distribution Ltd v Greater London Council
and another [1981] 3 ALL ER 716 Forbes J recognised that an award of interest fulfils the purpose of
an award of damages because it falls under the principle of restitution in integrum which means that
the plaintiff ought to be restored as nearly as possible to a position he would have been had not
breach by failure to pay him by the defendant. Forbes J held at page 722 that loss is assessed on the
footing that it is the:
‘..rate at which the plaintiff would have had to borrow money to supply the place of that which was
withheld.’’
That an award of interest is compensatory and where there is a claim for money, it is not necessary
for purposes of restoring the plaintiff under the doctrine of restitution in integrum to also award
damages.
In the case of ECTA (U) Ltd vs. Geraldine S.Namurimu& Josephine Namukasa S.C.C.. 29/94
Supreme Court (Per Odoki Ag. DCJ), ‘Clearly the Court has the discretion to award a reasonable
interest. But a distinction must be made between awards arising out of commercial transactions
which would normally attract a higher and awards of general damages which are mainly
compensatory. ..I think there is merit in the complaint in the complaint regarding the award of
interest of 25% on general damages. The rate of interest is definitely too high and I would reduce it
to 8%....’’
JUDGEMENTS-S.25 CPA
Section 25 CPA provides that court after case has been heard, shall pronounce judgement, and on
judgement decree shall follow; except that if a defendant does not enter appearance as may be
prescribed, the court may give judgement of a plaintiff in default.
0.21 r 1 provides for judgement, that in a suit where hearing is necessary the court to pronounce
judgement in open court either at once or on some future date notice of which shall be given to the
parties or their advocates.
0.21 r 3 the judgement pronounced by the judge who read it shall be dated and signed by him/her in
open court at the time of pronouncing it and the judgement pronounced by judge other than a judge
by whom it was written must be dated, countersigned by him in open court at the time of pronouncing
it. A judgement once signed shall not afterwards be altered or added as otherwise provided in section
99 CPA or review. Sec.99CPA provides for amendment of judgements, decree or orders in case of
clerical or mathematical mistakes in judgements, decree or orders, or errors arising in them from any
accidental slip or omission.
The form of judgement is provided for under 0.21 r 4 that judgement in defended suits shall contain a
concise statement of the case, points for determination, decision thereon and reason for such decision,
and 0.21 r 5 the court is required to state its decision on each issue with reason unless the finding
upon anyone or more issue is sufficient for the decision of the case.
DECREE
Section 25 CPA provides that “and on that judgement a decree shall follow”. Section 2 CPA defines
a decree as a formal expression of an adjudication which, so far as regards the court expressing it,
conclusively determines the rights of the parties with regard to any of the matters in controversy in
the suit and may be either preliminary or final. A Decree is further defined by Osborne Dictionary to
mean an order court pronounced on the hearing of the suit.
In the case of Attorney General vs. Goodman Agencies Ltd & Ors M.A 361/2015 held that the law
is well settled that only a decree holder is entitled to the fruits of judgement. A decree holder is
defined under section 2 (d) of the civil procedure Act. Section 2(c) defines a decree and under section
25 CPA a decree follows judgement.
The contents of a decree a provided for under 0.21 r 6. Sub rule 1 provides that a decree shall agree
with the judgement, it shall contain a number of suits, the names and description of the parties, the
particulars of the claims and shall specify clearly the relief granted or other determination of a suit. In
the case of Bamwite vs. Patel HCMA No. 188/2014 Madrama J held that a perusal of the decree
extracted shows that it does not conform to the consent judgement contrary to Order 21 r 6(1) CPR
which is mandatory and in the premises the decree cannot stand and struck off the record for non
compliance with Order 21 r 6(1) CPR.
Preparation of a decree and orders is provided for under 021 r 7.1) it shall bear the date on which the
judgement was delivered, 2) it shall be the duty of the party successful in the suit to prepare without
delay a draft decree and submit it for approval to the opposite party to a suit who shall approve it with
or without amendment, reject it without undue delay. If the draft is appropriate it is submitted to the
registrar who it is satisfied that it’s drawn up in accordance with the judgement shall sign and seal it
accordingly.
If the parties and the registrar do not agree upon the terms of the decree then shall be settled by the
judge who pronounced the judgement and the parties are entitled to be heard thereon if they so desire.
The rule has been considered in Eastern Province Bus Co. vs Bibi (1971) ULR 87- court found that
it’s the duty of the successful party to have in the first instance prepare the draft decree but if he fails
to do so and the other party desire to appeal against the judgement, the party will have to first the
decree extracted. This case considered the issue of preliminary decree and final decree and it
observed that in the case where liability had been determined first and quantum of damages later, the
plaintiff was entitled to obtain a preliminary decree first and the final decree upon determination of
quantum of damages
This duty of extracting a decree has also been considered in Asdi Weke vs Livingstone Ola (1985)
HCB 52 court found that the duty of extracting a decree is imposed upon a successful party because
it’s presumed that he will be anxious to execute the decree. The non-anxious party to appeal also has
a duty to take necessary part to extract decree. This includes taking or extracting a decree which is a
pre requisite for an appeal
However it is no longer a requirement to extract a decree before commencing an appeal. In the case
of Byekwaso & Anor vs. Ndagire HC Civil Appeal No. 078/2012 Justice Percy Night Tuhaise
stated that it has long been a requirement of the law, as held in W.T.M Kisule vs. Nampewo [1984]
HCB 55, Yoana Kakuze vs. Victoria Nakalembe [1988-1990] HCB 138 and Robert Biiso vs. May
Tibamwenda [1991] HCB, 92 that failure to extract a formal decree before filing the appeal was a
defect going to the jurisdiction of court and render the appeal incompetent. That the foregoing
provision was based on section 220(1) MCA. All of them were made before the current constitution
which was promulgated in 1995. This legal position appears to have changed in light of Art. 126(2)
(e) of the said constitution which enjoins courts to administer substantive justice without undue
regard to technicalities. That it has been since been held by court of appeal in Banco Arabe Espanol
vs. Bank of Uganda Civil Appeal No. 42/1998 that the extraction of a decree was a mere technicality
which the old municipal law put in way of intending appellants and which at times prevented them
from having their cases heard on the merits, and that such a law cannot co exist in the context of
Article 126(2)(e) of the constitution. That the position was maintained by the court of appeal in
Standard chartered bank (U0 Ltd vs. Grand hotel (U) Ltd Civil Appeal No. 13/1999. The judge held
that the extraction of a formal decree embodying the decision complained of is no longer a legal
requirement in the institution of an appeal. That the court in the cited Banco Arabe Espanol case
stated that an appeal by its very nature is against the judgement of a reasoned order and not a decree
extracted from the judgement or the reasoned order. Section 220(1)(a) MCA is appearing now in
conflict with the constitution which takes precedence as supreme law of the land. Besides, O.21 r 7(3)
CPR requires magistrate who pronounces the judgement to draw up the decree and to that extent the
magistrate’s failure to extract decree should not be visited on the appellant.
From judgement decree follows
From interlocutory application-Ruling follows
From ruling-orders
COSTS-S.27 CPA
After judgement has been given in an action, the judge will have to deal with the matter of costs or to
determine how they are borne i.e. whether a particular party must pay his own costs or have them
paid by the other side and on what basis they can be assessed and paid. Practically a party awarded
costs will not obtain from the other side all expenses he/she has incurred but only so much as its
properly allowable on the particular basis which they a assessed. What is considered is the incidence
and assessment of costs
Generally speaking a right to costs against another party only arises after court has made an order for
costs. Exception
3. Upon discontinuance/ withdraw of an action without leave of court
4. Upon consent of the parties where a party accepts payment in satisfaction of a claim inclusive
of costs otherwise whenever a case comes for determination, it has to make an order for costs
as borne.
Costs mean those expenses scrutinised and allowed by a taxing master in accordance with the
taxation of costs rules, section 27(1) CPA provides that it is subject to such conditions as limitations
as may be prescribed and with the provisions of any Law for the time being in force, the costs of and
incidence of all suits shall be in the discretion of court or judge and the court or judge shall have a full
power to determine by whom and of what property and what extent such costs are to be paid and to
give all the necessary direction for the purposes aforesaid the fact that the court or judge has no
Jurisdiction to try the suit shall be no bar to the exercise of such powers provided that costs of any
action, cause or other matter or issue shall follow the event unless the Judge or court for good reason
shall order.
In the case of Col.Dr.BesigyeKiiza v Museveni YoweriKaguta, ElectoralCommission ((Election
Petition No.1 Of 2001)) [2001] UGSCODOKI, CJ (by then) held that it is well settled that costs
follow the event unless the court orders otherwise for good reason. The discretion accorded to the
court to deny successful party costs of litigation must be exercised judicially and or good cause. Costs
are an indemnity to compensate the successful litigant the expenses incurred during the litigation.
Costs are not intended to be punitive but a successful litigant may be deprived of his costs only
exceptional circumstances. See Wambugu vs. Public Service Commission (1972) E.A. 296.
In awarding costs, the courts must balance the principle that justice must take its course by
compensating the successful litigant against the principle of not discouraging poor litigants from
accessing justice through award of exorbitant costs.
That in the present petition, he was of the considered opinion that the interests of justice required that
the Court exercises its discretion not to award the costs to the Respondents. That this was a historic
and unprecedented case in which a presidential candidate who is a serving President was taken to
court to challenge his election. The petition raises important legal issues which are crucial to the
political and constitutional development of the country. In a sense, it can be looked at as public
interest litigation. It promotes the culture of peaceful resolution of disputes. The petition was not
frivolous or vexations as the Petitioner succeed on issue No.1 and No.2, the petition was therefore of
great public importance in the history of Uganda. In several cases of significant political and
constitutional nature, the court has ordered each party bear its own costs. Accordingly each party
should bear the costs of litigation in this petition.
In the case of Paul Mwiru v Hon Igeme Nathan Nabeta Samson & others Election Appeal No.
6/11 Byamugisha JA held that the law is settled that costs in litigation follow the event and a
successful party is entitled to costs except for good reasons connected with the case. The decision to
award or not to award is within the discretion of the court which tried the case. Normally an appellate
court will not interfere with the exercise of discretion unless it is shown that wrong principles were
followed by taking into account an irrelevant factor or failing to take into account a relevant factor.
That in the case of Software distributers (Africa) Ltd & Anor vs kamboha Perez CA no. 07/06
this court said;
“We agree with the statement of the law as cited by both counsel that an appellate court will not
interfere with the exercise of discretion by a lower court unless it is clearly shown that the exercise
was judicially or wrong principles were followed. If there are grounds to support the exercise by the
trial judge of the discretion he or she purports to exercise the question of sufficiency of those grounds
for this purpose is entirely a matter for the trial judge to decide, and the appellate court will not
interfere with the discretion. It is immaterial that the appellate court would have exercised its
discretion differently.” That section 27 CPA governs the award of costs in civil matters in general.
The section has a proviso which states that: “provided that the costs of any action, cause or other
matter shall follow the event unless the court or judge shall for good reason otherwise order.” That in
election matters the court determining who should bear the costs of an election is guided by rule 27 of
the parliamentary petition Rules SI.141-2 which states as follows;
“All costs of and incidental to the preservation of the petition shall be defrayed by the parties in such
manner and in such proportions as the court may determine.” That the trial judge in determining how
costs should be defrayed said;
‘‘Ordinarily, costs of any action should follow the event. To that extent, I would have awarded 75%
costs to the 1st and 3rd respondents and 25% costs to the petitioner given that he was successful
against the 2nd respondent on issue No. 3. However, I am aware that petitions are matters of national
or political importance for which court should be hesitant to award costs. I am mindful of the
considerations of Bamwine PJ who, in Kadama Mwogezaddembe v Gagawala Wambuzi Election
Petition No. 2 of 2001 held: ‘There is another dimension to such petitions; the quest for better
conduct of elections in future...keeping quite over weaknesses in the electoral process for fear of
heavy penalties by way of costs in the event of losing the petition.,. would serve to undermine the very
foundation and spirit of good governance.’ Furthermore, in the present case very pertinent issues
were diligently raised and prosecuted in a remarkably expeditious manner. A party that exhibits such
judicious conduct of their case should be applauded and need not, in my view, suffer costs.
Particularly so, in an election that by law should be expeditiously prosecuted. Consequently, in
exercise of the court’s discretion, i do refrain from making any order as to costs. Each party shall
bear their costs.’’ That the trial judge gave reasons for the exercise of the discretion and the reasons
given were not erroneous in law.
In the case of Departed Asian property Board vs Jaffer Brother Ltd SCCA N0. 9/1998
Kanyeihamba JSC held that although courts have a discretion as to awarding of costs, it’s a general
rule of law and practice that costs should normally follow the event of the suit. That the principle
established in JB Kohil and others v Bachulal popatal (1947) EA 219 where court said; “having
regard to the above authorities it seems to be that were a discretion as to costs has been exercised by
the Judge his discretion is impeachable unless it can be shown to have taken into consideration
matters which are irrelevant to the issue in the case or non-existent. Further an appeal would be
entertained from the exercise of the discretion as to costs where court of appeal is satisfied that the
lower court applied wrong principles of law” That the ground advanced on behalf of the appellant
that the court of appeal by not stating categorically that there was or there was not a cause of action
against the appellant, the appellant had won that aspect of appeal is not convincing. The appellant was
joined for a different reason and on a different criterion. That the trial judge was wrong in principle
and in the justice of the case when he awarded costs to the defendants who had been joined in the suit
against the wishes of the respondent.
In the case of UDB vs Muganga Construction ( 1981) HCB 35 in a trial for the case, the parties
agreed that the sum claimed in the plaint was incorrect, on ascertainment of correct sum which was
less than the original claim in a consent judgement was entered for the plaintiff for the same. The
parties agreed on the incidence of costs. The plaintiff argued that he was entitled to his cost while the
defendant contended that each party should bear its costs since the plaintiff had claimed a wrong
amount. The court found that section 27 (1) CPA provided that costs should follow the event unless
the court orders otherwise. The Act gave the judge discretion but it had to be exercised judicially. The
court found that a successful party can only be denied costs if it’s found that but for his conduct the
action couldn’t have been brought. The costs follow the event even where a party succeeds only in the
main purpose of the suit. In the case the plaintiff had stated its claim 93% correct the defendant
themselves didn’t know the exact amount owing nor did they pay court a smaller sum which they
admitted to be owing, that there was no good reason for denying the plaintiff bank costs.
In the case of UTC VS Owuto (1985) HCB 27 in the case the judge struck out a plaint. He did not
award costs to the appellant for reason that counsel did not apply for costs. On Appeal the appellant
court found that costs are in the discretion of court under section 27 CPA that there should be some
grounds upon which the trial judge would exercise this discretion and the adequacy shouldn’t be a
matter for the appellant court to interfere. The court found that the reasons given by the judge that
counsel for the applicant did not apply for costs did not constitute a good reason within the meaning
of the rule and shouldn’t be regarded as discretion exercised judicially and there was no justification
for depriving the appellant of his cost.
The costs must be awarded by court otherwise no such can be taxed by a taxing master. In the case of
Rwantale vs Rwabutonga (1988-90) HCB100 this case court found that the chief registrar had no
jurisdiction to tax a bill of cost where none was awarded by the court.
Under O. 21 r 8 CPR, the decree or order shall not state the amount of the costs, which, after they
have been taxed or otherwise ascertained, shall be stated in a separate certificate to be signed by the
registrar, or, in a magistrate’s court, by the magistrate.
Costs generally involves professional fees of engaging an advocate otherwise all instruction fees
provided for by the Advocate Act and computed in accordance with the Advocates (Remuneration
and Taxation of Costs) (Amendment) Regulations 2018 provides for instruction fees, drafting,
drawing and perusing documents and handling both contentious and non-contentious matters.
Costs are assessed by the court through a process called taxation of costs done by an officer of court
called a taxing officer. In the case of the High court is the registrar and magistrate court is the
magistrate. The process of taxing begins with a party entitled to costs presenting a bill of costs which
is an invoice that shows the sums due to the party entitled to cost under the order of court. The bill of
costs will show professional charges and actual disbursement laid down in the separate column and
must be cast i.e. sums there in must be totalled before the bill laid for taxation. Costs may also
involve expenses or recovery of reimbursements like court fees for filling a suit, travel expenses for
witnesses or counsel wherever applicable, telephone calls and all expenses admitted in court as
reasonably following from the action.
Value Added Tax is shown on the bill at the end separate. Taxation proceedings are commenced in
court by issuing a taxation notice stating the day and time for taxation which is served on all persons
entitled to be heard. If any party who has been duly notified doesn’t attend within a reasonable
period, the taxing officer may proceed with the taxation expert.
The process conducted in an informal way and when the queries are settled the casting and summary
must be completed them the bill will be left with the taxing officer who determines the bill and issues
a certificate of taxation stating the amount fixed.
The procedure discussed in Evalist Nyanzi vs Zava (1983) HCB82 in which notice of taxation must
be given in all case except a defendant against whom costs a being taxed in case in which he did not
appear either personally or through an advocate. The court found that the taxing officer sits as a court
before whom parties lead evidence to prove or disprove costs and he has to make his ruling or order.
The court found that the taxation proceedings are therefore civil proceedings and a taxation notice is a
summons. Any person disgruntled by an order of a taxing master may appeal there from a judge.
Costs do not have a limit s.27 CPA. In the case of Arnest Ato vs Tom Alwala (1986) HCB 85 Court
found that costs have no limit, that a magistrate court can award costs which exceed the pecuniary
jurisdiction of the presiding magistrate provided they were incurred in the course of litigation.
In the case of Makula International Ltd vs Cardinal Nsubuga (1982) HCB 11.C.A (UG) 1. It was
held that the court would follow the principles enunciated by the court of Appeal in Premchad
Raichad Ltd and Anor vs Quarry Services of East Africa No.3 (1972) E.A 162 namely;
e) The costs can’t not be allowed to rise to such a level as to confine access to the courts to the
wealthy.
f) That a success litigant ought to be fairly reimbursed for costs he has incurred.
g) That the general level of remuneration of advocates must as such to attract recruits to the
profession.
h) That so far as practical here there should be consistence in the awards made and having
considered recent awards.
Interests-s.26 CPA
Section 26 CPA provides for award of Interests. Provides as follows;
(4) Where an agreement for the payment of interest is sought to be enforced, and the court
is of opinion that the rate agreed to be paid is harsh and unconscionable and ought not
to be enforced by legal process, the court may give judgment for the payment of interest
at such rate as it may think just.
(5) Where and insofar as a decree is for the payment of money, the court may, in the
decree, order interest at such rate as the court deems reasonable to be paid on the
principal sum adjudged from the date of the suit to the date of the decree, in addition to
any interest adjudged on such principal sum for any period prior to the institution of the
suit, with further interest at such rate as the court deems reasonable on the aggregate
sum so adjudged from the date of the decree to the date of payment or to such earlier
date as the court thinks fit.
(6) Where such a decree is silent with respect to the payment of further interest on the
aggregate sum specified in subsection (2) from the date of the decree to the date of
payment or other earlier date, the court shall be deemed to have ordered interest at 6
percent per year.
In the case of Lwanga vs. Centenary Rural Development Bank [1999] 1 E.A 175 CA, Okello JA
stated; ‘
‘‘A proper construction of section 26(2) of the Civil Procedure Act would show that it
empowers court to award three types of interests at the rate it deems reasonable:
4. Interest adjudged on the principle sum from the period prior to the institution of the
suit. Here, the court must first decide on the evidence, the question of award ability of
this interest and on the rate at which it is to be awarded if any.
5. In addition to that, Interest on the principle sum adjudged from the date of filing the
suit to the date of the decree. Here, the court decides at its discretion which must be
made judicially, the rate of interest to be awarded
6. Further to the above, Interest on aggregate sum so adjuged from the date of the decree
till payment in full.
That OGUS ON THE LAW OF DAMAGES at page 100 rationalises interest in two ways;
(3) That the plaintiff is thereby being compensated for being kept out of his money. He
has been deprived of the use of his money from the time he incurred his loss. On
that basis, interest is to run from that date
(4) That the defendant wrongfully withheld the plaintiffs money. The emphasis here is
on the defendant’s wrongful withholding of the plaintiffs money. On that basis,
interest is to run from the date when the defendant ought reasonably to have settled
the plaintiffs claim. This is rather punitive.
That it is clear from the above that whether or not interest is payable prior to the date of the suit
depends on the evidence available. That is why section 26(2) referred to that type of interest as
‘interest adjudged’. That in the cases of wrongful dismissal, interest runs from the date of dismissal.
That in the case of Bold v Brough, Nicoleson [1963] 3 ALLER 849 it was held that in the case of
unlawful dismissal, the interest payable should flow from the date of dismissal till payment in full.
In the case of Kizza Ssemberege vs. Motor Centre E.A Ltd HCCS No. 0369 of 2011 Justice
Madrama stated that the power to award interest is discretionary and is based on section 26 of the
Civil Procedure Act particularly section 26(2). That the question is what reasonable interest is as far
as commercial transaction is concerned? That in the case of Riches v Westminister Bank Ltd [1974] 1
ALL ER 467 HL at page 472 Lord Wright held that:
‘The essence of an interest is that it is a payment which becomes due because the creditor has not had
his money at the due date. It may be regarded either as representing the profit he night have made if
he had the use of the money, or, conversely, the loss he suffered because he had not that use. The
general idea is that he is entitled to compensation for deprivation.’’
That in assessing the rate of interest the court should be conscious of the market rates for lenders and
traders. Secondly in the case of Tate & Lyle Food and Distribution Ltd v Greater London Council
and another [1981] 3 ALL ER 716 Forbes J recognised that an award of interest fulfils the purpose of
an award of damages because it falls under the principle of restitution in integrum which means that
the plaintiff ought to be restored as nearly as possible to a position he would have been had not
breach by failure to pay him by the defendant. Forbes J held at page 722 that loss is assessed on the
footing that it is the:
‘..rate at which the plaintiff would have had to borrow money to supply the place of that which was
withheld.’’
That an award of interest is compensatory and where there is a claim for money, it is not necessary
for purposes of restoring the plaintiff under the doctrine of restitution in integrum to also award
damages.
In the case of ECTA (U) Ltd vs. Geraldine S.Namurimu& Josephine Namukasa S.C.C.. 29/94
Supreme Court (Per Odoki Ag. DCJ), ‘Clearly the Court has the discretion to award a reasonable
interest. But a distinction must be made between awards arising out of commercial transactions
which would normally attract a higher and awards of general damages which are mainly
compensatory. ..I think there is merit in the complaint in the complaint regarding the award of
interest of 25% on general damages. The rate of interest is definitely too high and I would reduce it
to 8%..’’
Damages in Civil Cases.
The Halsbury’s Laws (4th edn) para 1202 define damages as the pecuniary recompense given by
process of law to a person for the actionable wrong that another has done him. Lord Greene MR, in
Hall Brothers SS Co. Ltd V. Young [1939] 1 KB 748, at 756 (CA) thus;
‘‘Damages’ to an English lawyer imports this idea, that the sums payable by way of damages are
sums which fall to be paid by reason of some breach of duty or obligation, whether that duty or
obligation is imposed by contract, by the general law, or legislation.’’
Damages are, in their fundamental character, compensatory, not punishment. Whether the matter
complained of is a breach of contract or tort, the primary function of damages is to place the plaintiff
in a good position, so far as money can do, as if the matter complained of had not occurred.
As a general rule, the plaintiff must not receive more, nor should he receive less than the appropriate
measure of damages commensurate with his or her material loss. However in certain circumstances,
the court may award more than the normal measure of damages, by taking into account the
defendant’s motives or conduct, and in this case the damages may be ‘aggravated damages’ which are
compensatory or ‘exemplary damages’ which are punitive.
There are well established rules and principles that govern award of damages in civil cases. These
rules and principles are firmly rooted in the common law which is part of the law applicable in
Uganda by virtue of S.14 (2) of the Judicature Act, Cap. 13.
A statute may create a civil action for damages directly, and may also define the criteria for the
assessment of damages. By statute, common law remedies may be excluded or limited, or a limit may
be put on the damages recoverable. Examples of such statutes in Uganda include the Law Reform
(Miscellaneous provisions) Act, Cap 79; Employment Act 2006 see sections 66(4), 67(4), 70(3), 78,
79, 87, 88, 89, 90, 92 and 96(4) of the Act, National Environment Act Cap 153 see section 67 of the
Act which enables award of compensation on an environmental restoration order; Occupational
Safety and Health Act 2006 see section 102 which enables the application of statutory penalty to the
compensation of the victim of a statutory offense and Workers Compensation Act, 225. In this
context, damages may be referred to as statutory damages.
Classification of damages
There are different kinds of damages: general damages, special damages, nominal damages,
exemplary damages, aggravated damages and liquidated damages.
a) General and special damages
General damages, according to Lord Macnagten in the often cited case of Storms vs. Hutchinson
[1905] AC 515 are such as the law will presume to be the direct natural or probable consequence of
the act complained of.
Special damages, on the other hand, are such as the law will not infer from the nature of the act. They
do not follow in the ordinary course. They are exception in their character, and, therefore, they must
be claimed specially and proved strictly. The law requires a plaintiff to give warning in his pleadings
of the items constituting his claim for special damages with sufficient specificity in order that there
may be no surprise at the trial See Musoke vs. Departed Asian Custodian Board [1990-1994] EA 219;
Uganda Telecom v. Tanzanite Corporation [2005] EA 351; Mutekanga v Equator Growers (U) Ltd
[1995-1998] 2 EA 219; Uganda Breweries Ltd v. Uganda Railways Corporations Supreme court
Civil Appeal No. 6 of 2001 (unreported).
In current usage, special damages relate to past pecuniary loss calculable at the date of trial, whilst
general damages relate to all other items of damages whether pecuniary or non pecuniary. Thus in a
personal injuries claim, special damages encompass past expenses and loss of earnings, whilst general
damages will include anticipated future loss as well as damages for pain and suffering and loss of
amenity. See UCB vs. Deo Kigozi [2002] 1 EA 293.
b) Nominal damages
According to Maule J. in Beaumont V. Greathead (1846) 2 CB 494; 135 ER 1039, nominal

damages, in fact, mean a sum of money that may be spoken of, but that has no existence in point of
quantity.
Lord Halsbury in Halsbury’s Laws (4th edn) para 1112 quote:
‘‘A plaintiff is entitled to ‘nominal damages’ where
a) His rights have been infringed, but has not in fact sustained any actual damage
from the infringement, or he fails to prove that he has; or
b) Although he has sustained actual damage, the damage arises not from the
defendant’s wrongful act but from the conduct of the plaintiff himself; or
c) The plaintiff is not concerned to raise the question of actual loss, but brings his
action simply with the view of establishing his right.’’
c) Exemplary damages
The dictum of McCardie J. Butterworth V. Butterworth [1920] P 126 is helpful
‘‘Simply put, the expression exemplary damages mean damages for ‘example’s
sake.’ These kinds of damages are clearly punitive or exemplary in nature.
They represent a sum of money of a penal nature in addition to the
compensatory damages given for the pecuniary or physical and mental
suffering.’’
The award of exemplary damages was considered by the House of Lords in the landmark case of
Rookes vs. Barnard [1964] ALLER 367 at 410, 411. Lord Devlin stated that in his view there are
only three categories of cases in which exemplary damages are awarded, namely:
a) Where there has been oppressive, arbitrary, or unconstitutional action by the servants of the
government;
b) Where the defendant’s conduct has been calculated by him to make a profit which may well
exceed the compensation payable to the plaintiff; or
c) Where some law for the time being in force authorizes the award of exemplary damages.
Further, according to Lord Devlin in Rookes vs. Barnard above, when considering the making of an
award of exemplary damages, three matters should be borne in mind;
a) The plaintiff cannot recover exemplary damages unless he or she is the victim of punishable
behavior;
b) The power to award exemplary damages should be used with restraint, and
c) The means of the parties are material in the assessment of exemplary damages.
Exemplary damages should not be used to enrich the plaintiff, but to punish the defendant and deter
him from repeating his conduct. Court can award exemplary damages in addition to general damages
and special damage, if any. However, an award of exemplary damages should not be excessive. The
punishment must not exceed what would be likely to have been imposed in criminal proceedings, if
the conduct were criminal. All the circumstances of the case must be taken into account, including the
behavior of the plaintiff and whether the defendant had been provoked.
d) Aggravated damages
There is a thin line between exemplary and aggravated damages. Aggravated damages are ‘extra
compensation’ to a plaintiff for injury to his feelings and dignity caused by the manner in which the
defendant acted. Exemplary damages, on the other hand, are damages, which in certain circumstances
only, are allowed to punish a defendant for his conduct in inflicting the harm complained of. The
supreme court in the landmark case of Fredrick J.K. Zaabwe vs. Orient Bank & Others Supre Court
Civil Appeal No. 4 of 2006 (unreported) stated as follows;
‘With regard to exemplary damages, the appellant seems to equate them with
aggravated damages. SPRY, V.P. explained the difference succinctly in OBBO vs
KISUMU COUNCIL [1971] EA 91, at page 96; ‘‘The distinction is not always easy to
see and is to some extent an unreal one. It is well established that when damages are
at large and a court is making a general award, it may take into account factors such
as malice or arrogance on the part of the defendant and this injury suffered by the
plaintiff, as, for example, by causing him humiliation or distress. Damages enhanced
on account of such aggravation are regarded as still being essentially compensatory in
nature. On the other hand, exemplary damages are completely outside the field of
compensation and, although the benefit goes to the person who was wronged, their
object is entirely punitive.’’
For a finer distinction between exemplary damages and aggravated damages, it is appropriate again to
refer to the famous passage of Lord Devlin in the landmark case of Rookes vs. Barnard, above:
‘English law recognized the awarding of exemplary damages, that is, damages whose object was to
punish or deter and which were distinct from aggravating damages (whereby the motive and conduct
of the defendant aggravating the injury to the plaintiff would be taken into account in assessing
compensatory damages)…The fact that the injury to the plaintiff has been aggravated by the malice
or by the manner of doing the injury, that is, the insolence or arrogance by which it is accompanied,
is not justification for an award of exemplary damages; aggravated damages can do in this type of
case what otherwise could be done by exemplary damages.’’
Aggravated damages exist in an act or intention of the wrong doer. In every case considered
appropriate for the award of aggravated damages, the court should always point out what it considers
to be ‘aggravating circumstances’ in order to justify the basis of its award. Common examples of
aggravating circumstances from reported cases include; malice, ill will, or persistence in a falsehood
exhibited by the defendant to the detriment of the plaintiff. Consider case of publisher who
unsuccessfully attempts to plead and prove justification in answer to a defamation claim arising out of
a libelous article.
In the case of Uganda Revenue Authority v WanumeDavid Katamirike (CIVIL APPEAL NO.43
OF 2010) it was stated that Damages is compensation in money terms through a process of law for a
loss or injury sustained by the plaintiff at the instance of the defendant. That general damages are
awardable by court at large and after due court assessment. They are compensatory in nature in that
they should offer some satisfaction to the injured plaintiff. Aggravated damages are, like general
damages, compensatory in nature, but they are enhanced as damages because of the aggravating
conduct of the defendant. They reflect the exceptional harm done to the plaintiff by reason of the
defendant’s actions/omissions. That both general and aggravated damages focus on the conduct of the
defendant in causing the injury to the plaintiff that is being compensated for. Punitive or exemplary
damages are an exception to the rule that damages generally are to compensate the injured person.
These are awardable to punish, deter, express outrage of court at the defendant’s egregious,
highhanded, malicious, vindictive, oppressive and/or malicious conduct. They are also awardable for
the improper interference by public officials with the rights of ordinary subjects. Unlike general and
aggravated damages, punitive damages focus on the defendant’s misconduct and not the injury or loss
suffered by the plaintiff. They are in the nature of a fine to appease the victim and discourage
revenge and to warn society that similar conduct will always be an affront to society’s and also the
court’s sense of decency. They may also be awarded to prevent unjust enrichment. They are
awardable with restraint and in exceptional cases, because punishment, ought, as much as possible, to
be confined to criminal law and not the civil law of tort and contract.
e) Liquidated damages
Liquidated damages are unique to claims for breach of contract. The parties may agree by contract
that a particular sum is payable on the default of one of them, and if the agreement is not obnoxious
as a ‘penalty’ such a sum constitutes ‘liquidated damages’ and is payable by the party in default.
In all cases where the parties by their contract agreed a sum payable on the default of one of them, it
is always a question of law for the court to determine whether or not such a sum should be paid by the
party in default. If this sum is a genuine pre-estimate of the loss which is likely to flow from the
breach, then it represents damages, called ‘liquidated damages’ and it is recoverable without the
necessity of proving the actual loss suffered. If however, the stipulation is not a genuine pre-estimate
of the loss but it is in the nature of a ‘penalty’ intended to secure performance of the contract then, it
is recoverable, and the plaintiff must prove what damages he can.
COUNSEQUENCES OF JUDGEMENTS AND RES JUDICATA

Section 7 CPA provides that no court shall try any suit or issue in which the matter directly and
substantially in issue in a former suit between the same parties, or between parties whom they or any
of them claim, litigating under the same title, in a court competent to try the subsequent suitor the suit
in which the issue has been subsequently raised, and has been heard and finally decided by the court.
Explanation 1- The expression “former suit” shall denote a suit in which has been decided prior to
the suit in question whether or not it was instituted prior to it.
Explanation 2-For the purposes of this section, the competence of the court shall be determined
irrespective of any provision as to the right of appeal from the decision of that court.
Explanation 3-the matter above referred to must in the former suit have been alleged by one party and
either denied or admitted, expressly of impliedly, by the other.
Explanation 4- any matter which might and ought to have been made a ground of defence or attack in
the former suit shall be deemed to have been a matter directly and substantially in issue in that suit.
Explanation 5-any relief claimed in the suit, which is not expressly granted by the decree, shall for
the purposes of this section be deemed to have been refused.
Explanation 6-where parties litigate bona fide in respect of a public right or aprivate right claimed in
common for themselves and others, all persons interested in that right shall, for the purposes of this
section be deemed to claim under the persons so litigating.
This section embodies the doctrine of res judicata or the rule of inclusiveness of judgement, as to the
points decided, in every subsequent suit between the same parties. It is based partly on the maxim of
Roman jurisprudence Interest reipublica utsit finish litium-it concerns the state that there be an end
to law suits and partly on the maxim Nemo debit bis vexari pro una et eadem causa-no man should be
vexed twice over for the same cause.
The following conditions are necessary
1. ) the matter directly and substantially in issue in the subsequent suit must have been directly
and substantially in issue in the former suit
2. ) the former suit must have been between the same parties or between the same parties or
between parties under whom they or any of them claimed.
3. ) such parties must have been litigating under the same title in the former suit
4. ) the court trying the former suit must have been a court competent to try the subsequent suit
in which such issue is subsequently raised.
5. ) such matter in issue in the subsequent suit must have been heard and finally decided in the
first suit.
The above prepositions have been summarised by the court of Appeal in the case of Lt.David
Kabareebe v Maj Prossy Nalweyiso CACA No. 34/2003; “to give effect to a plea of res judicata,
the matter directly and subsequently in issue in the suit must have been heard and finally decided
in the former suit. It simply means nothing more than that a person shall not be heard to say the
same thing over in the successive litigation.
In the case of Maniraguha v Nkundiye CACA No. 23/2005 held that section 7 CPA stipulates as
follows “ No court shall try any suit or issue in which the matter directly or substantially in issue
has been directly and substantially in issue in the former suit between the same parties, or
between parties under whom they or any of them claim, litigating under the same title, in a court
competent to try the subsequent suitor the suit in which the issue has been subsequently raised,
and has been heard and finally decided by that court.” That this provision of the law cannot be
waived by parties. It is a law that prohibits a court from trying matters that had already been
finally determined. That the court of Appeal of Uganda in Ponsino Semakula vs Susane Magala
& Ors, 1993 KALR 213 had this to say on the doctrine of res judicata, “ the doctrine of res
judicata, embodied in s.7 CPA, is a fundamental doctrine of all courts that there mmust be an end
of litigation. The spirit of the doctrine succinctly expressed in the well-known maxim; ‘nemo debit
bis vexari pro una et aada causa’(No one should be vexed twice for the same cause) justice
requires that every matter should be once fairly tried and having been tried once, all litigations
about it should be once fairly tried and having been tried once, all litigations about it should be
concluded forever between the parties. The test whether or not a suit barred by res judicata
appears to be that the plaintiff in the second suit trying to bring before court in another way and
in the form of a new cause of action, a transaction which has already put before a court of
competent jurisdiction in earlierproceedings and which has been adjudicated upon. If so, the plea
of res-judicata applied not only to points upon which the first court was actually required to
adjudicate but to every point which properly belongs to the subject of litigation and which the
parties, exercising reasonable diligence might have brought forward at the time.’ That res
judicata is a plea of jurisdiction, in that section 7 CPAbars any court from trying a suit or even an
issue that is res judicata.it would be correct therefore to state that courts have no jurisdiction to try
a matter that is res judicata. That the decision in Ponsino Semakula vs Susane Magala and Ors,
( supra) is to the effect that the court before which the issue for res judicata is raised must peruse
the judgement of the court in the first suitand ascertain that the judgement exhaustivelydealt with
the issues raised in that case and if possiblethe court should peruse the whole record so that it gets
the opportunity to appraise all matters raised in the earlier suitin order to decide whether the plea
of res judicata succeeds or not. That a court before which a plea of res judicata is raised may rely
on judgement of the first court if it is produced without objection. That the plea of res judicata can
only be supported by production of a valid judgement in the case, the plea of res judicata could
therefore no be seen sustained in the absence of a valid judgement, or decree or pleadings and
proceedings of the first court.no basis upon which a plea of res judicata could be sustained.
In the case of Anifa Kwooya vs Attorney General & Anor Const.Pet.No.42/2011 the issue was
whether the matter of petitioners academic qualifications upon which the certificate of equivalent
was recalled is res judicata. It was held that the term res judicata is defined and explained in
section 7 of the civil procedure Act. That the meaning of res judicata is also expounded in Black’s
Law Dictionary eighth edition as follows;
1. An issue that has been definitely settled by judicial decision
2. An affidavit defence barring the same parties from litigating a second law suit on the
transactions and that could have been but was not raised in the first suit.
That the author of the dictionary explains that res judicata has three essential elements;
I. An earlier decision on the same issue
II. Final judgement on the merits
III. The involvement of the same parties or parties in privacy with the original parties
Court held that the second respondent has no right to investigate or recall the academic qualifications
of the petitioner now when the matter was settled by the highest court of this country in which it
could have voiced its concerns but chose not to do so, that the first respondent had a similar right but
did not seek to exercise it. The matter is now res judicata and the respondent cannot know resurrect it
In the case of Charles Mayambale vs Stanbic Bank SSC Reference No.69/2008 held that under
section 7 CPA, the learned registrar rightly concluded that the matter in issue Civil Application
No.87/2007 had been the subject of the earlier application and was accordingly res judicata.
In the case of GW Wanendeya vs Stanbic Bank Ltd HCCS No. 486/2005 justice Engonda Ntende
held that section 7 CPA provides for res judicata. That the court of appeal for East Africa in
Kamunye vs Pioneer Assurance Ltd [1971] E.A 263 considered the foregoing provision Law, Ag.
V.P sated, ‘the test whether or not a suit is time barred by res judicata seems to me to be – Is the
plaintiff in the second suit trying to bring before court, in another way and in the form of anew cause
of action, a transaction which has already put before court of competent jurisdiction in earlier
proceedings and which has been adjudicated upon. If so, the plea of res judicata applies not only to
points upon which the first court was actually required to adjudicate but to every point which
properly belonged to the subject of litigation and which the parties, exercising reasonable diligence,
might have been brought forward at the time Greenhalgh v Mallard [1947] ALL E.R 222 the subject
matter in the subsequent suitmust be covered by the previous suit, for res judicata to apply Jadva
Karsan v Harnam Singh Bhogal(1953) 20 E.A.C.A 74 that in the instant case the decision in Civil
suit No.437/2001 by Arach Amoko J is final decision that disposed of the suit wholly, and amounted
to a decree. In such circumstances it is sufficient to raise a bar of res judicata as it wholly disposed of
the matters in issue in that suit.
In the case of Mukiibi vs Elitek technologies International Ltd & 4 Ors HCCS No. 227/2010 justice
Bashaija held that the doctrine of res judicata is encapsulated under section 7 CPA. That clearly for
the matter to be regarded as res judicata, it must be directly and substantially in issue in the
subsequent suit and must have been directly in issue in the former suit. See Karsh v Uganda
Transport Co. [1967] E.A 774. The former suit must have been between the same parties under
whom they or any of them claim. See Gokaldas Lximidas Tanna v Sister Rose Muyinza [1990-1991]
KALR 21the court tying a former suit must have been a court competent to try a subsequent suit or in
which such issue is subsequently raised. See Islaila Dabule v wildon Osuna Otwany (1991) KALR
23Finally matter in issue in the subsequent suit must have been heard and decided in the first suit.
That applying the test of facts of the instant case, it is evident that the plaintiff was not a party to
Mengo Chief Magistrates Court Civil Suit No. 1401.2007.note the same issue arose and the case was
not finally decided between the same parties. Even on the bare minimum of the requirements of the
doctrine, the case fails the test of res judicata.
Pleading res judicata

The defence of res judicata cannot be raised, unless it is specifically pleaded in the defence. The party
pleading it must show from the records that the found his/her favour in another proceeding and must
produce all the relevant documents for that purpose. A plea of res judicata must be raised by the
pleadings. See Lt. Davide Kabareebe v Maj Prossy Nalweyiso (supra).
The party who is sought to be affected by the bar of res judicata should have notice of the pointthat is
likely to be decided against him/her and should have an opportunity of pitting forward his/her
contentions against such a plea. A suit cannot be said to be barred by res judicata on the face of the
pleadings unless all the conditions requisite are stated in the pleading itself. See Obura v Kooma
[2001] E.A 177. It is not sufficient merely to plead the defence of res judicata without evidence to
sustain it. See Farook Aziz (administrator of Salima Kabasingo vs Abdalla Abdu Maruku SCCA No.
4/2002.
In the case of Mubangizi Julius vs Uganda Baati SCCA No.1/2011 was held that the supreme courts
that occasion to consider and state the law on res judicata in Civil Appeal No. 4/2002 Farook Aziz
( administrator of Salima Kabasingo vs Abdalla Abdu Maruku Chief Justice Odoki, as he then was
held, ‘As Crabble JA said in the case of Mandavia vs Singh (9165) E.A 118 AT 121, ‘ Res judicata
on the one hand is a matter of pleadings and can be raised only at the trial. The principle underlying
the doctrine of res judicata are ‘Interest reipublicae ut sit firus litium’ and Nemo Debit bin rexari
pro eadem causa’ the court before which the plea is raised is not deprived of jurisdiction to hear the
case, the court only declines to exercises its jurisdiction to allowthe parties to litigate the matter when
it is satisfied that the same parties are suing in the same capacity and that the issue before it is the
same as that alleged to have been the subject of adjudication in previous proceedings.’ That the
supreme court again on res judicata in Civil Appeal No. 17/2002, Fr. Narsensio Begumisa and
Others vs Eric Tibegaba held that,-the defence of res judicata is abar to a plaintiff whose claim was
previously adjudicated upon by court of competent jurisdiction in a suit with the same defendant or
with a person through whom the defendant claims’ ‘that in the instant case, the dispute between the
two parties had not yet been duly adjudicated upon. An order for the matter to proceed exparte had
been given but the main suit was still pending. The presiding judge determined that it was in the
interest of justice to set aside for the matter to proceed exparte.
A mere opinion of the court on the matter not necessary for the decision of the case and not arising
out of the issues before it is an orbiter dictum and cannot be said to be decision on an issue, and is
therefore not res judicata
In the case of Ponsino Semakula v Susane Magala and Others [1979] HCB 89 the court set out the
following as the test for determining whether a case is barred by the principle of res judicata.’ In
determining whether or not a suit is barred by res judicata, the test is whether the plaintiff in the
second suit is trying to bring before the court in a another way in the form of a new cause of action, a
transaction which has already been presented before a court of competent jurisdiction in earlier
proceedings which have been adjudicated upon.’
Final judgements
Final judgements, which will give rise to the application of the doctrine of res judicata, are divided
into two classes, namely; judgement in rem and judgement in person am.
A judgement in rem may be defined as ajudgement of court of competent jurisdiction determining the
status of a person or thing, or disposition of a thing, as distinct from the particular interest in it a party
to litigation
A judgement in person am or inter parties are those which determine the rights of parties as between
one another to the subject matter in dispute.
Judgements by Consent or Default.

A judgement which would be final if it resultedfrom judicial decision after a contest is not prevented
from being so by the fact that it was obtained by consent or default, or as that result of admissions,
provided the party against whom it is up was under no disability.
Decision on preliminary or technical points

When a prior suit has been dismissed on some technical ground without going into the merits of the
questions raised, there can be no decision on such questions and therefore no res judicata. See Isaac
Busulwa v Ibrahim kakinda [1979] HCB179.
Interlocutory Orders
Interlocutory applications in a suit cannot themselves be regarded as suits for the purposes of section
7 and orders thereon cannot, at a subsequent stage of the same suit, be regarded as decisions in former
suit
Whether compensation in Criminal case id Res Judicata in a civil suit.
A criminal court may order compensation for material loss or personal injury S.197 MCA & S.126
TIA. This is not abar to subsequent civil action for damages and the principle of res judicata shall not
be a defence in an action for recovery of damages and other reliefs. A person is at liberty to set both
the criminal law and civil law in motion to recover damages. See Esso Standard (u) Ltd vs Mike
Nabudere HCCS No. 594/1990 (1992) KALR VI 40.
EXECUTION AND STAY OF EXECUTION

In the case of Unique Holdings vs Business Skills Trust Ltd HCMA No. 402 of 2012 Justice
Christopher Madrama cited Words and Phrases Legally Defined volume 2 and 3 rd edition London and
Butterworth’s 1989 at pagae 195-196 for definition of the word ‘‘execution’’ where it is written that:
‘‘in its widest sense signifies the enforcement of or giving effect to the judgement or orders of courts
of justice’’. Furthermore reference was made to the holding of Denning MR on the meaning of
‘‘execution’’ and completion of execution in the case of Re Overseas Aviation Engineering (GB) Ltd
[1962] 3 All ER 12 at page 16 under 325:
‘‘The word ‘execution’ is not defined in the Act. It is, of course, a word familiar to lawyers.
‘‘Execution’’ means, quite simply, the process for enforcing or giving effect to the judgement of the
court: and it is ‘completed’ when the judgement creditor gets the money or other thing awarded to
him by the judgement. That is the meaning is seen by reference to that valuable old book ‘Termes de
la Ley’’, where it is said:
‘Execution is, where judgement is given in any action, that the plaintiff shall recover the land, debt or
damages, as the case is; and when any writ is awarded to put him in possession, or to do any other
thing whereby the Plaintiff should the better be satisfied his debt or damages, that is called a writ of
execution; and when he hath the possession of the land, or is paid the debt or damages, or hath the
body of the Defendant awarded to prison, then he hath execution.’’
Execution is the process of realizing the fruits of a judgement by enforcing the decree against the
unsuccessful party through one or more of the various modes of execution as by law prescribed.
Having obtained judgement, the successful party may need to consider how such judgement can be
enforced. If the judgement was against reputable institutions like an insurance company, or bank, it
will almost invariably satisfy the judgement promptly and enforcement will not be necessary.
However, in other cases enforcement will be necessary where there is failure to obey the order of
court.
Section 38 of Civil Procedure Act provides for execution and powers of the court to enforce
execution. Section 38 provides that the subject to such conditions and limitations as may be
prescribed, the courts may, on the application of the decree holder, order execution of the decree;
a) By delivery of any property specifically decreed
b) By attachment and sale, or by sale without attachment, of any property
c) By attachment of debts
d) By arrest and detention in prison of any person
e) By appointing a receiver, or
f) In such other manner as the nature of the relief granted may require.
It is the decree holder to select the appropriate means of execution of his decree, subject to the
discretion of the court. There is nothing to prevent successful party from applying for several modes
of execution (see O.22 r 27 CPR). However, the court may in its discretion, refuse execution at the
time against the person and property of the judgement debtor (O.22 r 18 CPR)
The parties to execution.

The person (judgement creditor) who is named or ascertained in a judgement or order is entitled to
the benefit therefore and may issue execution against the person called the judgement debtor (who is
subject to the obligation imposed on him/her thereby). Execution cannot issue against a non-party to a
suit. In the case of Rajimpex vs National TextilesBoard& Anor HCCS No. 1033/1986 held that
execution cannot issue against anon party to a suit
However, where a person has been liable as surety, then the decree or order may be executed against
him/her to the extent to which he/she has rendered himself/herself personally liable-section 93 CPA.
In case a judgement debtor dies before the decree has been satisfied the holder of the decree may
apply to court which passed it to execute the same against representative of such deceased or against
such person who has intermeddled with estate of such deceased-Section 39 CPA.
Procedure of execution
It is the duty of the decree holder desirous of having the same executed to apply to court for
execution. This in practice should come after a polite request by way of service of a demand notice
accompanied by a decree to be satisfied, has been ignored by the debtor. Section 30 CPA Court that
passed the decree or the court to which it is sent for execution can execute the decree. O.22 r 7 CPR
provides that where a holder of a decree desires to execute it, he shall apply to court which passed the
decree or where the decree is sent to another court for execution then so such a court.
Also consider High Court Administrative Circular No. 4/2011 under which the execution division
was created for purposes of execution of decrees. The court has jurisdiction to determine all the
questions relating to the execution, discharge and satisfaction of the decree.
 Application can be made orally for decrees for payment of money only provided it is made upon
passing the decree. This method is appropriate when executing a decree passed under O. 36 CPR
where it is intended that the judgement debtor be arrested and such debtor is still within the
court’s precints-O.22 r 8(1) CPR.
 Formal application under O. 22 r 8 (2) CPR. See Form 5, Appendix D to the CPR, or Chamber
summons in case of Garnishee proceedings and Third Party Notice. Before execution, a decree
must be executed, signed and issued. Every application for execution of a decree shall be in
writing, signed and verified by the applicant or his advocate and shall be in tabular form
containing the suit number, parties, date of decree where appeal is preferred, whether any party
payment effected, whether there is a previous application, amount due with interest if any or other
reliefs granted, amount of costs, name of person against whom execution is sought, the mode in
which the assistance of court is required- O.22 r 8(2). An application must be accompanied with a
certified a copy of a decree.-O.22 r 8(3)
However O.22 r 19 provides that where an application for execution is made (a) more than one year
after the date of the decree; or (b) against the legal representative of a party to the decree, the court
executing the decree shall a notice to the person against whom execution is applied for requiring
him/her to show cause, on a date to be fixed, why the decree shall not be executed against him/her;
except that no such notice shall be necessary in consequence of more than one year having elapsed
between the date of the decree and the application for the execution if the application is made within
one year from the date of the last order against the party whom the execution is applied for, made on
any previous application for execution, or in consequence of the application being made against the
legal representative of the judgement debtor, if upon a previous application for execution against the
same person the court has ordered execution to issue against him/her.
In the case of Peter Gukiina vs Paul Kawanga Semogerere & Ors [1991] HCB 72 held that it was
mandatory under O.19 r 19 (1) (c) now (22 r 1 (a) that where the application for execution is made
after expiration of more than one year, the court executing the decree must issue a notice to the
person against whom execution is applied requiring him show cause why execution should not issue.
There is time limit for execution. S.35 CPA executions is barred in certain cases under which no
order of execution of the same decree shall be made upon any fresh application presented after the
expiration of 12 yrs from the date of the decree sought to be executed. Also section 3(3) of the
Limitation Act prohibits an action brought upon any judgment after the expiration of twelve years
from the date on which the judgment became enforceable.
In the case of Green Pastures Ltd vs. Cooperative Bank (In liquidation) HCMA No. 172 of 2015
Justice Madrama stated that there were two provisions of the law to be considered. The first is the
Limitation Act section 3(3) which deals with limitations with regard to actions brought upon any
judgment after expiration of 12 years from the date on which the judgment became enforceable as
well as the question of arrears of interest in respect of any judgment. The second provision is section
35 of the Civil Procedure Act which bars enforcement o decree after expiration of 12 years. That
under section 3(3) of the Limitation Act, an action or proceeding inclusive of applications for
execution upon any judgment is barred after expiration of 12 years from the date on which the
judgment became enforceable. The second aspect is that no arrears of interest in respect of any
judgment debt shall be recovered after expiration of six years from the date on which the interest
became due. That if one went by the provisions of section 35 of the Civil Procedure Act, the same
results would be achieved. That section 35 of the civil procedure Act is to be read together with the
Limitation Act section 3(3).
Court Bailiff
The Judicature Court Bailiff rules SI 13-6 r 4 provide that execution proceedings shall be conducted
by a person to be designated a court bailiff who shall hold a license issued by an appointing authority
under Rules and a letter of appointment in the form specified in the First Schedule to the Rules. See r
11-19 of SI 13-16.
The court acts through bailiffs and when they are exercising their functions, they are protected under
the Judicature Act S.46. In the case of Kabwengure vs Kanjabi 1974 HCB89, the respondent got
judgement which was granted. Counsel applied to quash the execution in exercise of courts power of
review. Court found that the applicant could not sue any of the officers or persons who carried out the
execution as they were protected by the Judicature Act. That they were acting pursuance of a decree
in the court of law which had to be given full force and credit unless suspended or set aside by court
which issued it or higher court.
In the case of Kiiza Walusimbi & 2 Ors vs. Senyimba & 3 Ors HCCS No. 248 of 2011 the issue
was whether the suit against the Court bailiff is barred by law. Justice Murangira stated the Court
bailiff enjoys immunity from civil proceedings against him arising out of acts in execution of orders
of court pursuant to section 46(1) and (2) of the Judicature Act. That the effect of the provision is that
the court bailiff has immunity for his acts carried out pursuant to a decree and warrant of attachment
that was issued. That in Joyce Kinyankwanzi vs. Hezekia K. Ndugga & Anor [1974] HCB Justice
Allen (as he was then) held that: ‘…a court broker, when in the process of attaching and selling
property and lawfully acting upon the lawful warrant or order of the court was an officer of court
and consequently he was protected by section 46(2) of the Judicature Act 1967, which was applicable
in this case. Therefore an order would be made that the plaint be rejected as disclosing no cause of
action against the defendants with costs to the defendants’’. That the above decision of Allen J was
re-affirmed by Justice Musoke-Kibuuka in the case of Regina Bagada vs The Cooperative Bank
[200] KALR 737 whereby he held that:-‘A court broker is not expected to look into the validity of a
courts’ order or warrant. The bailiff is only expected to see that the order or warrant is signed by the
Judge or magistrate or registrar and that it bears the seal of court. Once the bailiff is executing a
warrant of court his acts cannot be called unlawful unless the broker attached property in excess of
the warrant or outside the warrant, which would turn the broker into a trespasser. Any action to
contest the propriety of execution must be by notice of motion to the court that issued the judgment
and order of execution as per the provision of s. 35 civil procedure act. A separate suit as it was done
here is untenable.’’ That Ssekandi, J in the case of Kabwengura vs Charles Kanjabi [1977] HCB 89,
held that:- ‘The appellant could not sue any of the officers or persons present who carried out the
execution of the decree as these are protected under section 46 of the Judicature Act. They were
acting in pursuant of a decree of a court of law which had been given full faith and credit unless
suspended or set aside by the court that issued it or any higher court. All questions relating to
execution including discharging the execution of the decree have to be determined by the court
executing the decree and not by a separate suit (s.35(1) of the civil procedure Act) and therefore the
appeal against the dismissal of the suit was dismissed with costs.’’ That the current suit is barred by
the provisions of section 34(1) civil procedure Act. That whereas the above provision refers to parties
the provision has been interpreted to mean any person who wishes to contest the process of
attachment of his / her properties must proceed under the provisions of section 34(1) civil procedure
Act by way of an inquiry by notice of motion in the court which issued the execution and not
commence a fresh suit as the plaintiffs did in the current suit. That the supreme court of Uganda in
Francis Micah vs. Nuwa Walakira SCCA 24 OF 1994 reported [1995] KALR 360 was held:
‘Section 35(1) (now section 34(1) civil procedure Act requires that all matters arising to execution be
determined by the court executing the decree and not by a separate suit. The case of Hannington
Wasswa & Anor vs Maria Onyango Ochola & 3 Others SCCA 22/93 which stated that the court
bailiff should be sued separately, should be distinguished from s. 35 (1) CPA because the case of
Wasswa dealt with a prayer for damages for fraud against the court bailiff. The application
complaining of excess attachment was rightfully under section 35(1) in this instant case by motion.’’
That the above decision was followed by Musoke –Kibuuka J in Regina Bagad vs. The Cooperative
Bank Ltd [2000] KALR 737. That accordingly, the current case is not sustainable in light of the
provisions of section 34(1) CPA. The plaintiffs ought to have challenged the execution by way of
Miscellaneous Application by Notice of Motion in the court that carried out the execution of the
decree and sale of the suit property and under the suit in which execution was levied. The rationale of
this is not difficult to discern, how can this honorable court ascertain and discern want went on during
the execution when it never executed those orders? Secondly the interest of justice demand that there
should be an end to litigation and a successful party should be able to enjoy the fruits of his or her and
its judgment.
A court broker loses his immunity only if he acts unlawfully.

In the case of Semakula vs Musoke [1981] HCB 46 court found that protection of the court brokers
under the Judicature Act only applies in respect of lawful act done. That there was no such protection
were officer did unlawful acts. That under the Judicature Act it is possible to sue brokers for unlawful
warrant in addition to their liability to executing an unlawful warrant. That a court broker has a duty
to ensure that he is executing a lawful order of court.
In the case of Famous cycle Agency & Ors vs M.R.Karia & Anor HCCS No. 88/1992 held that a
registrar has powers of supervision over court bailiffs may legitimately intervene in execution
proceedings.
Procedural steps for effecting particular execution
1. Arrest and detention

A judgement debtor may be arrested in execution of a decree. S.40 CPA. Execution may come by
way of arrest in civil prison. Procedurally it goes by creditor applying to court to show cause under
O.22 r 34 by judgement debtor. This notice requires a debtor to show cause and give reasons why he
should not be detained civil prison. In the case of Hajj Hassa Bin Abdul vs Ramathan Rajab 1987
HCB 36 court found that before a judgement debtor is imprisoned he should first be served with the
notice to appear and show cause why he should not be imprisoned under O.22 r 34. Court found that a
civil warrant of arrest is designed for a civil debtor how much he has to pay in order to avoid being
sent to prison.
O. 22 r 36 judgement creditor is obliged to pay for the subsistence of judgement debtor in prison at
such a rate as court shall fix for its subsistence.
Every person detained in prison in execution of a decree shall not be detained for a period exceeding
six months S.42 (1) CPA. However, the detention of the judgement debtor doesn’t affect the liability
to pay the decretal sumS.42 (2) CPA. Where the judgement debtor is released from prison, shall not
by reason of his release be discharged from his debt, but shall not be re-arrested under the decree in
execution of which he was detained in prison. S.42 (2) CPA.
Examination of Judgement Debtor

Where a decree is for the payment of money, the decree holder may apply for an order that the
judgement debtor or in case of corporation, any officer of corporation or any other person be
examined as to his means O.22 r 38 CPR. The officer conducting the examination must take down a
written statement made by the debtor and the debtor must answer questions fairly directed to ascertain
his/her financial circumstances, including information as to bank accounts, policy numbers.
2. Attachment and sale.
This involves actual seizure of property from the judgement debtor which is taken into the hands of
the court and applied in the manner provided in the order of court to satisfy judgement of court. It is
ordinarily followed by sale.
Section 38(b) Court can order execution of decree by attachment and sale. Attachment must be done
during day i.e. no person shall enter any dwelling house after sunset and before sunrise S.45 (1) CPA.
Reasonable force may also be used to gain access if the judgement debtor attempts to deny or delay
attachment s.45 (2) CPA.
Immediately after seizure, the court bailiff must apply to proceed to sell them. The sale must be held
within a reasonable time and be made for the best price reasonably obtained.
a) Movable property (other than agricultural produce)

The general rule is that all movable property of the debtor liable for attachment must be sufficiently
identified and described both in the application and warrant of attachment.
S.44 CPA provides for properties liable for attachment and sale in execution of decree, namely, lands,
houses or other buildings, goods, money, bank notes, cheques, bills of exchange, promissory notes,
Government securities, bonds or other securities for money, bets, shares in a corporation and, except
as hereafter mentioned, all other saleable property , movable or immovable, belonging to the
judgement debtor, or over which or the profits of which he/she has a disposing power which he/she
may exercise for his or her own benefit, whether the property be held in the name of the judgement
debtor or by another person in trust for him/her or on his/her behalf. The section further provides for
property not liable for attachment to include;
a) the necessary wearing apparel, cooking vessels, beds and bedding of the judgement debtor and
of his wife and children and such personal ornaments as in the accordance with the religious
usage cannot be parted with by any woman;
b) tools of artisans and where the judgement debtor is an agriculturalist, such implements of
husbandry and such livestock and agricultural produce not exceeding in value five hundred
shillings as may, in the opinion of the court, be necessary to enable him/her to earn his/her
livelihood;
c) books of accounts;
d) a mere right to sue for damages;
e) any right to personal service;
f) stipends and gratuities allowed to pensioners of the Government, or payable out of any service
family pension fund as the minister may, by statutory instrument, specify in his behalf and
political pensions
g) the salary of any public officer, servant of a railway company or local authority, or any person
privately employed to the extent of
I. the whole of the salary, where the salary does not exceed forty shillings monthly;
II. forty shillings monthly, where the salary exceeds forty shillings and does not exceed
eighty shillings monthly; and
III. one moiety of the salary in any other case;
h) an expectancy of succession by survivorship or other merely contingent or possible right or
interest;
i) a right of future maintenance;
j) any fund or allowance declared by law to be exempt from attachment or sale in execution of a
decree, shall not be liable to attachment and sale
Explanation-
1. The particulars mentioned in paragraphs (f), (g), and (j) are exempt from attachment and sale
whether before or after they are actually payable.
2. Subject to subsection (1) (g) in the case of salary of any public officer, servant of a railway
company or local authority or any person privately employed, the attachment shall be made by
a written order requiring the officer or person whose duty it is to disburse the salary to
withhold every month such portion as the court may direct until further orders of the court.
3. Nothing in this section shall be deemed to affect the provisions of the Uganda Peoples
Defence Forces Act or of any similar Act
In the case of Fenekasi Semakula v James & Fred Musoke [1981] HCB 46, this was an action for
damages in trespass and conversion brought by the plaintiff who was the defendant into a civil suit
brought by the third defendant. The 1st and 2nddefendant’s purported to be court brokers who executed
an attachment warrant against the plaintiff in connection with the suit. The defendant in the suit
applied for execution in the magistrate’s court and they then went ahead and pulled the plaintiffs
house to pieces by removing the entire roof of iron sheets and all wooden window flames and doors
leaving only the mud wattle walls. In a suit for conversion courts found that with regard to the
warrant that was executed, there were wrong things with the warrant. Court found that movable
property attachable would include furniture, curtains, carpets, radios, T.V sets and other households
and personal possessions and would quiet definitely no include parts of fabric of a house. Court found
that iron sheets forming the roof, window flames, and doors were part of the house itself and would
only be attached if the whole house in its complete state was to be attached and that would constitute
immovable property. Court observed that there can never be any justification for tearing a person’s
house to pieces as done in this case. That if the movable property is to be attached, the house should
be left in the whole condition for the judgement debtor to continue leaving in and if immovable
property such as house is to be attached then the whole building should be sold as one unit.
The goods of the judgement debtor may be taken in execution by seizure and attachment O.22 r 28
(1), O.22 r 40 CPR. The decree holder shall remain with the attached property until such a time when
the judgement debtor has obeyed the decree. Upon refusal the decree holder shall apply to have
attached property sold.
Where the judgement debtors has obeyed the decree and paid all cost, which is bound to pay, after the
goods seized, the court bailiff may not proceed to sell the goods, and where at the end of the six
months from the date of attachment, no application to have the property sold or if made, has been
refused, the attachment ceases 0.22 r 28(3) CPR.
Where property subject to the attachment is highly perishable, or keeping of the same in custody is
costly and devoid of business sense or it is livestock, the bailiff shall seek prompt leave of court to
sanction its speedy disposal-O.22 r 40 (2) CPR.
b) Agricultural produce (O.22 r 41 & 42 CPR)

The applicant is duty bound to notify court under his / her application the likely time, when the
growing crop will yield into maturity (harvesting period). This will enable court to make an order
prohibiting the judgement debtor against removal of the crop pending execution of the decree (O.22 r
42(4) CPR)
Attachment is effected by affixing a copy of the warrant of attachment at the garden where the
produce is growing or at the heap/ store where the same has been gathered-O.22 r 41CPR. Upon
maturity / harvesting these can be sold like any other movable property.
c) Immoveable property (O.22 r. 75 CPR)
The general rule is that immovable property must be sufficiently identified and described i.e by
boundaries, or Block, Plot No. Place or location, and existing developments thereon.
Attachment is made by serving an attachment warrant expressing an order prohibiting the judgement
debtor from transferring or changing the property in any way and ordering such debtor to deliver up
to court the duplicate certificate of title to the property.
A copy of the attachment is fixed at a conspicuous place on any part of the property
The intended sale shall be advertised capturing the sufficient details as to description of the property
and extent of existing developments thereon. The notice shall contain the conditions of sale-O22 r.63
(3) CPR).
The sale shall be conducted after expiry of 30 days notice-O.22 r 64 CPR

On the auction date, a purchaser so declared can pay instalments provided in the initial deposit is not
less than 25% of the purchase value, but shall complete the balance within 15 days (O.22 r 77 (1)
CPR)
On receipt of the full balance the sale becomes absolute and the bailiff shall execute transfer
instruments in case of registered land, and immediately file a return to court. The proceeds shall be
handled in accordance with O.22 r 1 & 2 CPR
The purchaser shall present such transfer instruments for registration of his or her interest together
with a duplicate certificate of title, certified copy of the decree, warrant of attachment and sale
agreement –S. 135 RTA
3. Attachment of Debts/ Garnishment S.38(C) CPA, & O.23 r 1CPR.

Money in possession of other party not a party to a suit in which the judgement debtor applies to
court exparte for an order directing that the person not a party to suit who may be in possession of
money on account of a judgement creditor. In those situations the court will make an order against the
garnishee to be summoned to establish that actual amount. On court being satisfied that the money
exists will order the garnishee to deposit money with court.
Attachment of debts is a process by which means of which a judgement creditor is enabled to reach
money due to the judgement debtor, which is in the hands of a third party O.23 r 1. The third person
in whose hands is the money which is sought to be attached, is called Garnishee, the requisite
proceeds are known as garnishee proceedings and the necessary order is called garnishee order.
Garnishee Absolute-O. 23 r 3 CPR. It is effected when the garnishee bank transfers funds from
judgement debtors account to that of the judgement creditor. See Unique Holdings Ltd vs. Business
Skills Trust Ltd HCCS No. 402/2012
In the case of Ziritwawula vs UBC 1987 HCB, a judgement creditor sought to recover money in
UBC allegedly held by the bank on account of judgement debtor. A garnishee order nisi was passed
directing UBC to explain. At the hearing on an application to make the garnishee order absolute, that
bank objected on ground that the account of the judgement debtor was at its branch in Masindi which
at the time was disturbed area, cut off and not accessible. The bank did not establish the actual monies
if any held on the account of the judgement debtor. The court refused to make the order absolute.
In the case of Ahmed Mohammed vs Justice Wamala 1986 HCB, this was an application to make a
garnishee order nisi absolute. Court found that it’s established law that in garnishee proceedings there
must be a debtor-creditor relationship. Court must first be satisfied before it makes an order absolute
of the existence of the debt at the present time. A debt which a judgement debtor could sue if he could
chose. In this case the applicant sought to recover a sum of money satisfaction of garnishee in respect
of money deposited with the garnishee by way of security for expenses in transaction of selling his
tea, but no expenses had been deducted as yet therefore the amount could not be ascertained before
the sale of the tea.
4. Attachment of Decree (S. 38 (f) CPA & O.22 r 50 CPR)

Attachment of decree is effected by sending a notice to court which passed the decree, to stay
execution of the same
Followed by the application for execution by the judgement creditor, to the court which passed the
decree. The effect is to prohibit or restrain such debtor from receiving any benefit from such decree.
The proceeds of executing the subject decree shall then be passed over to the applicant / judgement
creditor in the circumstances.
5. Execution against the Government

Neither arrest nor attachment can be enforced against the government as of right. Rule 15 of the
Government proceedings (civil procedure) rules S.171-1 excludes the applicability of O.22 (execution
of decrees and orders), 23 (Attachment of debts) and 42 (appointment of receivers) to matters relating
to government. Under these rules therefore, it is the law that no attachment of government property
can issue.
Before an execution or satisfaction of an order against government is issued, the judgement debtor
shall apply for a certificate of satisfaction order before a registrar after expiration of twenty one days
S.19 GPA and Rule 14 (1) Government proceedings (civil procedure) rules. Such a copy of certificate
is served to the Attorney General by the decree holder S.19 (2) GPA. This procedure was summarised
in the case of Brother Peter vs A.G [1980] 107 to the effect that the proper procedure is for the
judgement creditor to apply for and obtain a certificate from the registrar and present it to the proper
officer or accounts and after endorsement from the Attorney General for payment.
Where the official refuses to pay, the judgement debtor can apply for mandamus. The high court has
the power to make an order for mandamus which is directed towards the public officer in question
requiring him to do that for which he is under a public duty to do S. 37 (1) Judicature Act.
In the case of Goodman Agencies Ltd & Ors vs A.G HCCS No.719/1997an application for judicial
review on which an order of mandamus directing the Government of Uganda through the
commissioner treasury comply with the judgement and decree of court .Justice Tabaro held that by
judgement dated 14-11-2005 it was decreed that Government to pay the sum of 1,332,172,842shs
representing the value of the truck in question, Shs 12,865,370,000 representing loss of income/
earning and. Shs300,000,000 being cost of the suit. That subsequently in a ruling of court it was
ordered that the decretal amount be paid in court, to date the defendant A.G has not met the detrital
amount. That ordinarily the judgement creditors would be entitled to proceed with the execution, it is
well known that execution against the Government is not permitted by law. Since there is no other
mode or channel for recovery of the detrital amount, an application is granted under O.46A and an
application for mandamus shall be fixed.
In the case of Nabuwati & 2 Ors vs. The Secretary to the Treasury & Anor HCMA No. 2613 of
2016 the applicant sought orders of mandamus to issue against the respondents to pay money
indicated in the Certificate of order against the government. The issue was whether this was a proper
case for issue of the order of mandamus. Court held that the high court has discretion to grant an
order of manadamus in all cases in which it appears to be just and convenient. The order may be
granted unconditionally or on such terms and conditions as the court thinks fit. That in order to obtain
a writ of mandamus, the Applicant has to establish the following circumstances;
 A clear legal right and a corresponding duty in the respondent
 That some specific act or thing that the law requires that particular officer to so, has been
omitted to be done
 Lack of any alternative
 Whether the alternative remedy exists but it is inconvenient, less beneficial or less effective or
totally ineffective.
That courts have clearly stated that ‘the duty to perform an act must be indisputable and plainly
defined as mandamus will not issue to enforce doubtful rights’ see Nampogo Robert and Another
vs. A.G HCCMA 0048/2009.
That in the present case, the applicant obtained judgement against the Attorney general, a decree
was extracted. A certificate of order was issued. Minister of justice by letter directed the
respondents to pay the amounts due in the said certificate but the respondents have failed to settle
the amount due, to the detriment of the applicants. That it has been established by courts ‘a decree
or order of payment made against Government becomes a statutory duty for the Government
concerned to perform the duty. And that payments decreed against Government have to be made
by the Attorney General through the Treasury Officer of Accounts.’
That the respondent’s refusal and or failure to pay amounts decreed by court continues to grossly
inconvenience the applicants. The writ of mandamus to issue to compel the respondents to
perform their statutory duty to pay the applicants the sums due and owing as per the decree and
certificate of order against the government.
In case an order of mandamus is granted and the official is still obstinate, court can invoke contempt
of court proceedings or by an application to show cause why the respondent should not be committed
to a civil prison for non-compliance with order of mandamus. In practice, some decree holders are
pushing for execution against Government departments by way of attachment of Government
property (motor vehicles) relying on the principles and reasoning for the grant of injunctive relief
against the Government . See Ostraca Ltd v A.G.
6. Execution against Local Government

No execution, attachment or process in such a nature shall be issued out of any court for enforcing
payment by a local government of any money or costs again its fixed assets and statutory transfers,
provided the execution or attachment may be against any other property after six months from the
date judgement, orders or decree -S. 6 (2) Local Government Act Cap.243.
7. Receiver by way of Equitable Execution

Application may be made to the court for an order for appointment of a receiver to receive rents,
profits and other income of the judgement debtor, which cannot conveniently be attached by the other
methods of execution.
REMEDIES AFTER JUDGEMENT

Stay of execution
Every judgement or decree of a court of competent jurisdiction takes effect immediately upon
pronouncement. Although court will not without good reason delay a successful plaintiff in obtaining
fruits of his judgement, it has power to stay execution if justice requires that the person against whom
judgement is to be enforced should have this protection.
The court has inherent jurisdiction over all judgements or orders that it made, under which it can stay
in all cases-O.43 r 4 CPR.
O.22 r 26 CPR provides that where a suit is pending in any court against the holder of a decree of the
court in the name of the person against whom the decree was passed, the court may, on such terms as
to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been
decided.
The court of Appeal or the court below may stay execution pending an appeal, but mere service of
notice of appeal does not operate as a stay-O.43 r 4 CPR
Under rule 6(2) of the court of Appeal Rules, the institution of an appeal shall not operate to suspend
any sentence or to stay execution, but the court may in any civil proceedings, where a notice of appeal
has been lodged in accordance with rule 76 of these rules, order a stay of execution, an injunction, or
stay of proceedings on such terms as the court may think just. See also Rule 6 (2) of the Supreme
Court Rules.
In the case of Kavuma T/A Kavuma & Associates v Attorney General & Goodman agencies HCMA
NO. 417/2012. Justice Mwangusya held that it is well settled principle of our law that an appeal does
not in itself operate as a stay of judgement. The principle was expounded in Kampala City Council vs
National Pharmacy (1979) HCB 215 where it was held that the prudency of an appeal does not itself
operate as a stay of judgement. That the statutory provisions Rule 6 (2) of the judicature (court of
appeal) rules directions and the judicature (Supreme Court) rules directions an appeal does not
operate as a stay of execution. That similarly in Goodman Agencies Ltd & Anor vs A.G & Anor
HCMA 34/2011 Madram J held that there is to be a stay of execution, there has to be an application
for an order to stay the decision appealed against and an order for stay should be in place.
That the application herein falls under the ambit of the provision of section 21(1) of the Government
Proceedings Act (cap 77) ‘attachment of monies payable by the Government’
1. Where any money is payable by the Government to some person who, under any order of any
court, is liable to pay any money to any other person, and that other person would if the
money so payable by the Government were money payable by a private person, be entitled
under rules of court to obtain an order for the attachment of the money as a debt due or
accruing due, the High Court may, subject to this Act and in accordance with rules of court,
make an order restraining the first mentioned person from receiving that money and directing
payment of that money to that person; except that no such order shall be made in respect of-
a) any money which is subject to the provisions of any enactment prohibiting or
restricting assignment or charging or taking in execution; or
b) any money payable by the Government to any person on account of a deposit in the
Post Bank Uganda Limited.
2. The provision of subsection (1) shall, so far as they relate to forms of relief falling within the
jurisdiction of a magistrates court, have effect in relation to magistrate courts as they have in
relation to the High court.
That none of the exceptions is applicable to this case and once it is acknowledged that the only an
order of stay of execution can prevent the attorney general from paying the monies owing to the
second respondent the implication of the above is that before the 2nd respondent is paid the monies
due, the applicant would have to be paid.
Before leave is taken on this matter, it was raised that according to circular of registrar, this
application should have been handled by the execution division. That the circular of the registrar
is an administrative arrangement that would not prevent court from hearing the matter which it
has jurisdiction to hear
Rule 42 of the court of Appeal rules providing that whenever an application may be made either in
the court of Appeal or in the High Court, it shall be made first in the High Court. Notwithstanding in
any civil matter, the court may on application or of its own motion, give leave to appeal and grant a
consequential extension of time for doing any act as the justice of the case requires, or entertain an
application under rule 6 (2) (b) of these rules, in order to safeguard the right of appeal,
notwithstanding the fact that no application for that purpose has first been made to the High Court.
In the case of National Pharmacy Ltd vs Kampala City Council [1979] HCB 123 (AC) held that a
successful party in the high court is entitled to enforce the decree obtained even by execution, if
necessary, and pendency of an appeal is no bar to him in so doing: rule 5 (2) Court of Appeal Rules.
If the losing party so wishes he may apply for stay of execution but no automatic stay exist under the
rules by virtue only that an appeal has been filed. An application for stay of execution must first be
made to the High Court and if made to the court of Appeal, it must be made to the full court and not a
single judge Rule 52(2) of court of Rules.
In the case of Moses Ingula vs Law Development Centre held that there can never be stay by
inference.
However there is an exception where the law recognizes automatic stay of execution as long as the
aggrieved party prefers an appeal. Section 95 (3) of the parliamentary elections Act 2005 where as a
result of an election petition the election of a person who has been elected is set aside the decision
shall not have the effect of that person to vacate his or her seat until, where no lodged, the expiry of
the time within which to lodge an appeal or where an appeal has been lodged, the appeal has been
fully disposed of or withdrawn. See Peter Adong vs Markey Vicent Okidi Elect. Pet. No.20/2011.
A court of appeal may order the stay of execution of the judgement of a lower court, but before it
does so, the lower court has inherent powers to proceed to enforce its own judgement regardless of
the fact that an appeal against the judgement is pending before a higher court.
If the grounds of applying for a stay are that an appeal is pending, the applicant will need to show not
only that the appeal has a real prospect of success, but usually that if a stay was not granted and the
decree executed, the appellant would have no reasonable prospect of recovering it.
For protection of immediate interest of the claim, it is prudent to apply for an interim order of stay of
execution pending determination of the interparty application for main stay. See Lawrence Mulindwa
Kyazze vs Lawerence Busingye that encourages making an informal application before a judge who
made the decision for an order to staying orders and later to file a formal application.
In the case of Hwan Sung Industries Ltd vs Tajdin Hussein & 2 Ors Civil Application
No.19/2008, also by the court of Appeal in Crane Bank Ltd & Anor vs Belex Tours & Travael
Miscellaneous Application No. 343 & 345/ 2013 on the issue of merit of an application seeking an
interim order. After establishing that the notice of appeal had been lodged in accordance with rule
72of the rules S.C the court stated as follows, ‘…. For an order of stay, it suffices to show that a
substantive application is pending and that there is a serious threat of execution before the hearing of
the pending substantive application. It is not necessary to prompt consideration of matters necessary
in deciding whether or not to grant the substantive application for stay”
Procedure of stay of execution

The practise the court has adopted is that in general the application for stay of execution should be
made informally to the judge who decided the case when the judgement is delivered. The judgement
may direct that formal application be presented on notice.
The jurisdiction of court to stay execution where there is a pending suit stems from section 98 CPA,
which preserves the inherent powers of court rather than under O.22 r 26. A further notice presented
under O.52 r 1 does serve as a remedy in addition to providing procedure.
It is possible and proper to apply to set aside and staying an execution in one application as long as
the application refers to the correct provisions of the CPA. The high court has inherent power to stay
its orders including those for execution, irrespective of whether there is an appeal to the court of
appeal. The court of appeal can order a stay of execution in exercising of the jurisdiction exercised by
the high court. In the case of Mugenyi and Co. Advocates vs National Insurance Corporation Civil
Appeal No.13/1984 {1992-1993] HCB 82 court of appeal held;
i) Under O.19 r 26 (now O.22 r 26 CPR) where a suit is pending in any court against the holder
of a decree of such court in the name of the person against whom the decree was passed, the
court may on such terms as to security or otherwise, as it thinks fit, stay execution of the
decree until the pending suit has been decided. The words of rule 26 of O.19 requires that
there shall be pending a suit in the same court again the holder of the decree in that court
brought by the unsuccessful party in the earlier suit and it’s that court which may on terms as
it thinks fit stay execution of the decree until the pending suit has been decided. In the instant
case, the pending suit was an appeal in the court of appeal and not a suit in the high court
which was being asked to stay execution.
ii) An appeal pending in the higher court against the earlier decision of the court is not a suit
pending in that court and could not be the basis of an application for stay of execution within
the meaning of O.19 r 26
iii) Under section 2 CPA, an order for the dismissal for default is not a decree holder and thus the
respondent who was the appellant in the high court was not a decree holder and thus was a
valid objection to an application for stay of execution under O.19 r 26. The instant case did
not fall within the scope of O.19 r 26.
iv) It is well established that the high court has inherent jurisdiction under S.101 CPA to stay any
of its orders pending appeal. Since the high court has power to stay execution of any of its
orders either in exercise of its inherent jurisdiction, O.39 r 4 ( now O.43 t 4), it follows that
like jurisdiction is conferred on the court of appeal by section 40 (2) Judicature Act 1967.
Threshold for Stay of Execution
The principle of law to be followed in an application to stay of execution is whether substantial loss
would arise from not granting the same and whether the dictates of justice demand so.
In the case of Imelda Nandaula vs. Uganda Development Bank [1992] 1 KALR 97 held that the
principle of law to be followed in applications to stay of execution is whether substantial loss would
arise from not granting the same and whether the dictates of justice demand so.
In the case of Keisi Investments Ltd vs. Erimu Company Ltd HC Miscelleneous Appeal No. 003
of 2015 the issue was whether execution should be stayed, that is whether the respondent has
established sufficient cause for stay of execution. That it is trite law that ‘the court may exercise its
discretionary powers in considering an application for granting a stay of execution.’ An application
for stay of execution has to establish any one of the three circumstances to enable a court to grant a
stay order. These are:-
i. Whether the appeal has prima facie a likelihood of success
ii. Whether the refusal of staying execution is likely to cause substantial and irreparable
injury to the applicant, or
iii. On a balance of convenience. Refer to Magunga vs. National Bank of Commerce Ltd
[2007] 2 EA 285
In the case of Kiranda vs. Top Finance Company U Ltd Misc. Application No. 356 of 2015 the
issue for court to determine was whether stay of execution should be granted and the property
attached released from attachment. That decided cases indicate that ‘the granting of or otherwise of an
order of stay of execution is at the discretion of the court. In exercise of this judicial discretion, the
court as and where is relevant considers a number of factors, notably, whether the refusal to grant stay
is likely to cause substantial and irreparable injury or loss to the applicant, whether the injury or loss
cannot be atoned by damages; balance of convenience, and whether prima facie the intended appeal
has likelihood of success. Above all, further to considering the above factors, the court takes into
account the individual circumstances and merit of the case in question.’-See Universal Petroleum
Services Ltd vs. BP Tanzania Ltd [2006] 1 EA 486 (CAT)
In the case of Kayizzi vs. Osman MA No. 1921 of 2016 the applicant sought orders for staying
execution of the decree. The issue was whether this is a proper case for grant of stay of execution.
Court stated that to obtain a stay of execution, courts have stated ‘a party must satisfy three
conditions’ to wit;-substantial loss may result unless the order of stay is made, the application has
been made without unreasonable delay; and security for costs has been given to the applicant. It has
been clarified that ‘substantial loss does not represent any particular size or amount but refers to any
loss, great or small that is of real worth or value as distinguished from a loss that is merely nominal.’-
Tropical commodities Supplies Ltd and Others vs. International Credit Bank Ltd (in Liquidation)
(2004) 2 E.A 331 CH CU. If execution is not stayed, the outcome of the application pending in
the lower court may be rendered nugatory and the applicant might suffer substantial loss.
In the case of Uganda Medical & Dental Practioners Council & Anor vs. Ssentongo MA No. 2656 of
2016 Court stated that while it has been established that court has discretion to grant stay of
execution, it should be borne in mined that ‘this power ought to be exercised judiciously and where it
appears equitable to do so, with a view to temporarily preserving the status quo’. That in deciding
whether to grant a stay of execution or not, the following guiding principles among others should be
considered:-
1. Likelihood of success of an appeal/application
2. Danger of suffering substantial loss or irreparable injury
3. The application has been made without unreasonable delay
4. Security for costs has been given by the applicant
5. Balance of convenience
Refer to Malinga Noah & 2 Others vs. Akol Henry CAMA 203/15 and David Wesley vs.
Attorney General Constitutional Application 61/14.
That however, courts emphasised that, ‘in application of this nature, guiding principles would depend
on the individual circumstances and merit of each case. The individual circumstances of each case
would determine whether the case falls within the scope and parameters of any other laid down
principles’-See East African Development Bank vs. Blueline Enterprises Ltd [2006] 2 EA 51 CAT.
That the applicants claim that they will suffer substantial loss unless the order of stay is granted, but
do not state what kind of loss will be suffered. That courts have repeatedly emphasised that ‘it is not
enough to merely repeat the words of the code and statute that substantial loss will result; the kind of
loss must be specified, details must be given and conscience of the court must be satisfied that such
loss will really ensue. The words ‘substantial loss’ cannot mean the ordinary loss to which every
judgement debtor is necessarily subjected when they lose a case and is deprived of property as a
consequence. That is an element that must occur in every case...It is clear that the words ‘substantial
loss’ must mean something in addition to or different from that,’-See Tanzania Cotton Marketing
Board vs. Cogecot Cotton Co. SA [1995-98] EA 312. That in the present case, the applicants have not
indicated how they will suffer substantial loss by registering the respondent as directed by court and
also paying him Shs. 5Mn/-, general damages plus accumulated interest. That it might held the
applicant to note that ‘pending of an appeal is not a bar toa successful party’s to enforce a decree
obtained even by execution.’-See URA vs. Tembo Steel Ltd HCMA 0521 /2007.
Payment in instalments
The judgement debtor may after the passing of judgement apply to court with consent of the decree
holder, to pay the decretal sum in instalments.-0.21 r 12(2) An order for payment of instalments after
judgement and without consent of the decree holder is a nullity.
Objector Proceedings
Upon execution by way of attachment of property, which allegedly does not belong to the judgement
debtor, such attachment can be contested where the claimant or objector maintains that the property is
not liable to such attachment. This power is extensive, and any claim or objection raised must be
investigated.
The rationale for this rule is mainly to protect third parties against improper and misconceived
executions. Objector proceedings are in effect intended to enable holders of equitable interest to
preserve their interest or entitlement in absence of the legal or registered right e.g. bonafide occupants
of land.
0.22 r 55 provides that where any claim is preferred to, or any objection is made to the attachment of,
any property attached in execution of a decree on the ground that the property is not liable to
attachment, the court shall proceed to investigate the claim or objection with the like power as regards
the examination of the claimant or objector, and in all other respects as if he or she was a party to the
suit, except that no such investigation shall be made where the court considers that the claim or
objection was designedly delayed. Where the property to which the claim or objection applies has
been advertised for sale, the court ordering the sale may postpone it pending the investigation of the
claim or objection.
In the case of Hariral and Company vs. Buganda Industries [1960] EA 318cited Chitaley and
Rao,s Code of Civil Procedure (6 ed)page 1880 that; ‘what is to be investigated is indicated by the
following next rules, viz rule 59, rule 60 and rule 61. The question to be decided is, whether on the
date of attachment, the judgement-debtor or objector was in possession, or where the court is
satisfied that the property was in possession of the objector, it must be found whether he held it on his
own account or in trust for the judgement debtor. The sole question to be investigated is thus, one of
possession. Questions of the legal rights and title are not relevant, except so far as they may affect the
decision as to whether possession is on account of or in trust for the judgement debtor or some other
person.’
The court is bound to order the release of the attached property if it finds that possession in the
claimant on his / her own account, even if there is title and disposing power remaining in the
judgement debtor.
The main basis of objection under this rule concerns possession, not title although a suit under this
rule goes to title, not merely possession, and all the objector must show is that he was in possession of
the property at the time of attachment for which he claims an interest.
It is important to note that rule 55 must be read hand in hand with rule 56 which contains the grounds
that the objector or claimant must rely on. The effect of objector proceedings is to release the property
from attachment.
Objector proceedings must be brought with all promptitude otherwise they fail if delay was deliberate
or reckless. There is no delay when there is no evidence that the person affected is aware of the date
of attachment or the date of subsequent sale.
If an objector losses an application for objector proceeding then the only alternative left for him was
to file a suit to establish his right, which he claims to the property in dispute as provided for under
0.22 r 60 and not an appeal.
In the case of Edmond Khakale vs. Banyamini Wadali (1976) HCB 19 held that in objection
proceedings the sole equation to be investigated is one of possession and questions of legal right and
title are not relevant except so far they affect the decision as to whether the possession is an account
for in trust for judgement debtor or some other person.
In the case of Mukama vs. Harris Motors (U) Ltd MA No. 2365 of 2016 the issue was whether the
vehicle should be released from attachment. Court stated that it has been established by decided cases
that ‘in objection proceedings, the investigation the court does is restricted to issue of who was in
possession on the date of attachment and not necessarily who has title over property’-see Kiwalabye
vs UCB and Joseph Mulenga vs. Photo Focus (U) Ltd [1996] KALR 615 at 616. That however, while
possession is emphasised, the emphasis must be read in light of O.22 r 56 C.P.R which says that ‘the
objector should show that he has interest in the property other than possession.’ -Kiwalabye’s case.
In the case of Buscar East Africa vs. Mulinda MA No. 213 of 2017 an application was made under
O.22 r 55(1), 56 seeking orders releasing motor vehicles from attachment. The issue for
determination was whether the two vehicles should be released from attachment. Court stated that the
principle established by decided cases is that ‘in objection proceedings, the investigation the court
does is restricted to the issue or who was in possession on the date of attachment and not necessarily
who has title over the property’. –Refer to Kiwalabye vs. Uganda Commercial Bank & Another
[1994] KLR 633. That according to the case of Joseph Mulenga vs. Photo Focus (U) Ltd KLR, ‘the
applicant has to plead possession in the affidavit.’ That Courts have further emphasised that ‘what
court needs to investigate is not ownership of the property being attached. But has to determine that
applicant was in possession of attached property on his own account and not on account of the
Judgement Debtor or some other person’. –See Mineral Waters Ltd vs. Kampala Mineral Waters Ltd
[1996] KLR 466 . That it is clear from the decided cases that the issue of ownership should not be
investigated at this stage.
Topic VIII
THE SLIP RULE
SEC 99 CPA, RULE 36 COURT OF APPEAL RULES, RULE 35 SUPREME COURT RULES.
Section 99 CPA provides for amendment of judgments, decrees or orders. It provides that Clerical or
mathematical mistakes in judgments, decrees or orders, or errors arising in them from any accidental
slip or omission may at any time be corrected by the court either of its own motion or on the
application of any of the parties.
Rule 36 of the Court of Appeal rules provides that a clerical or arithmetical mistake in any judgment
of the court or any error arising in it from an accidental slip or omission may, at any time, whether
before or after the judgment has been embodied in a decree, be corrected by the court concerned,
either of its own motion or on the application of any interested person so as to give effect to what was
the intention of the court when judgment was given. An order of the court may at any time be
corrected by the court, either of its own motion or on the application of any interested person, if it
does not correspond with the judgment or ruling it purports to embody or, where the judgment or
order has been corrected under sub rule (1) of the rule, with the judgment or order as so corrected.
Rule 35 of the Supreme Court Rules has the same provision.
In the case of Transtrac Ltd vs. Damco Logistics Ltd HCMA No. 348 /2012 the application was
made under section 99 of the Civil Procedure Act and the enabling rules of the Civil Procedure Rules
for orders that the second line of the judgment in the main suit namely civil suit number 161 of 2012
is corrected by inserting the figures US$303,330 between the word "Party" and the full stop.
Secondly it is for orders that the decree in civil suit number 161 of 2010 is corrected by inserting
US$303,330 at the end of paragraph 3 thereof and for costs of the application to be provided for.
Justice Madrama held that Section 99 of the Civil Procedure Act is set out here in below: "99.
Amendment of judgments decrees or orders
Clerical or mathematical mistakes in judgments, decrees or orders, or errors arising in them from
any accidental slip or omission may at any time be corrected by the court either of its own motion or
on the application of any of the parties."
That the provision clearly deals with clerical or mathematical mistakes. Secondly it deals with any
errors in judgment arising from any accidental slip or omission. That the case of Orient Bank Ltd
versus Frederick Zaabwe and Mars Trading Ltd Supreme Court Civil Application Number 17
of 2007 the Supreme Court interpreted rule 35 (1) of the Supreme Court rules. The Supreme Court
rules are similar to section 99 of the Civil Procedure Act and provide that:"A clerical or arithmetical
mistake in any judgment of the court or any error arising in it from an accidental slip or omission
may, at any time, whether before or after the judgment has been embodied in an order, be corrected
by the court, either of its own motion or on the application of any interested person so as to give
effect to what was the intention of the court when judgment was given."It is similar to section 99 of
the CPA because it makes reference to clerical or arithmetical mistakes in any judgment or order.
Secondly it makes reference to errors arising in the judgment or order from an accidental slip or
omission. Thirdly an application for correction may be made by an interested person or the court may
on its own motion make the correction. The Supreme Court rule is wider in that it provides that any
interested person may apply whereas section 99 of the Civil Procedure Act provides for an
application by any of the parties. The Supreme Court rules also has an addition in that it gives the
intention of the rule as to give effect to what the intention of the court was when judgment was given.
That the Civil Procedure Act section 99 thereof however does not have this latter part of the rule.
That the Supreme Court held that subject to the inherent powers of the court and the slip rule, the
decision of a court in every proceeding is final. The court made reference to the case of Lakhamshi
Brothers Ltd versusR. Raja And Sons (1966) EA 313at 314 for the proposition of law that the
court will only apply the slip rule were it is satisfied that it is giving effect to the intention of the court
at the time when judgment was given or, in the case of the 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.
That the slip rule under which the applicant applied refers to a clerical or mathematical mistake. This
aspect of the section is inapplicable to the applicant’s application because there was no clerical or
mathematical mistake. The question for determination is whether there was any error made by the
court by accidental slip or omission not to mention the quantum for indemnity of the defendant under
clause 6.5 of the contract which was also the basis of the liability of the third-party in the judgment.
Court held that the fact that there is a controversy between the parties as to the quantum of the full
replacement value of the goods lost while in the custody of the third-party, demonstrates without the
need for further argument that the court had omitted to pronounce the quantum of the full replacement
value of the goods. The applicant’s application therefore has merit .In the premises, the applicant’s
application succeeded in part and, because the interpretation of the court of the judgment is adverse to
the applicant, each party shall bear its own costs of the application.
This provision of slip rule also considered in the case of Adam Viasiliyadis vs. Libyan Arab Bank
SCC App. No. 28/1992. An application was made under rule 34 (now 35) of the Supreme Court rules
for the court to correct an error in its judgment. The court found that it had powers to correct
arithmetical or clerical mistake of judgment of the court or any error arising therein from any
accidental slip or omission at any time whether before or after the judgment has been embodied in an
order so as to give effect to what was the court’s intention when judgment was given.
This rule has been considered in Kasandas vs. Jivraj [1965] EA 700. In this case the court forgot to
vacate an order of stay of execution and to order payment of the monies deposited in court. In an
application to correct the error, the respondent submitted that the court had no power to amend
judgment once they have been embodied in formal order and were counsel fails to make the
appropriate application. The Court found that the Court of Appeal has jurisdiction to amend judgment
and order the same powers the High Court has under section 99 CPA. The Court found that slip
orders may be made to rectify omissions resulting from the failure of counsel to make some particular
application. That slip order will only be made were court is fully satisfied that its giving effect to the
intention of the court at the time when judgment was given or in case of a matter which was
overlooked, where its satisfied beyond doubt as the order it would have made had the matter been
brought to its attention.
In the case of David Muhenda vs. Humphrey Mirembe SC Civil Applic. No. 5/2012 the applicant
brought the application by notice of motion under rule 2(2) and 35 of the Judicature (Supreme Court
Rules) Directions (S.l. 13-11) seeking orders that the honorable Court recalls its judgment dated 17 th
October 2000 and varies or amends the same to make provision for the estate of Kezia Rujumba;
AND/OR IN THE ALTERNATIVE application be made of the slip rule to correct the error or
injustice caused by the mis-description of the boundaries to the suit property. Court held that under
rule 2(2) of the Judicature (Supreme Court Rules) Directions SI 13-11, it has the power to recall its
judgment and make orders as may be necessary for achieving the ends of justice. In doing so, it is not
limited to rule 35 of the rules of the court. See, for example, Livingstone Sewanyana vs. Martin
Aliker, Msc. App. No. 40/91 and Nsereko Joseph Kisukye& Others vs. Bank of Uganda, Civil Appeal
No. 1 of 2002 and Orient Bank Ltd vs. Fredrick Zaabwe&Anor Civil Appl. No. 17 of 2007. In
Nsereko Joseph Kisukye case, for example, the court recalled its judgment and made clarifications on
the orders it had made to make them implementable. That however, the power of the court in this
respect is not open ended. As it was stated in Orient Bank vs. Fredrick Zaabwe (supra) “the decision
of this court on any issue or law is final, so that the unsuccessful party cannot apply for its reversal”.
This principle is based on the decision of Lakhamshi Brothers Ltd vs. R. Raja and sons [1966] E.A.
313 page 314 where Sir Charles Newbold P stated: “....There are circumstances in which this court
will exercise its jurisdiction and recall its judgment, that is, only in order to give effect to what
clearly would have been its intention had there not been an omission in relation to the particular
matter. But this application and the two or three others to which I have referred go far beyond that.
It asks, as I have said, this court in the same proceedings to sit on its own previous judgment. There
is a principle which is of the greatest importance in the administration of justice and that principle is
this, it is in the interest of all persons that there should be an end to litigation.” That this principle
was restated in the case of Fangmin vs. Dr. KaijukaMutabazi Emmanuel SCCA No. 06 of 2009. That
this application asks court to clarify the boundaries so that Kezia’s land is left out of the execution of
this court’s decree. It asks for the clarity of the phrase “...in the South Kezia” contained in the
judgment. Court further held that it did not, set out to describe the boundaries other than quoting the
part of the learned appellate judges judgment and agreeing with it. It is assumed that the applicant
was satisfied with the boundaries as described in the judgment of the learned appellate judge
otherwise he would have made it a ground of appeal to this court. He did not. That in their view,
therefore, there is nothing to clarify or correct or vary in the judgment of the court concerning the
description of boundaries. The grievance of the applicant as shown in the grounds of his application
and affidavits in support of the notice of motion is that the property of late Kezia was taken by the
respondent during execution of this court’s decree. If this complaint is true, and this is subject to
proof, the remedy does not lie in recalling the judgment of this court and varying or amending or
clarifying it or applying the slip rule to correct the alleged injustice caused by mis-description of the
boundaries because this court did not set out a description of boundaries in its judgment as earlier
stated. That the proper procedure for addressing the complaint that has arisen during execution was
for the applicant to file objector proceedings as provided for under section 31(1) of the Civil
Procedure Act and Rule 50 of Order 22 of the, Civil Procedure Rules. Alternatively he can file a
fresh suit to claim the property that might have been taken by the respondent during the execution.
Court further held that it will refuse to entertain delayed applications brought under rules 2(2) and 35
of the rules of this court unless sufficient reasons are shown to justify the delay. That the phrase “at
any time” appearing in rule 35(2) of the rules of this court should not be interpreted to mean that
inordinately delayed applications without justification will be permitted by this court. This inordinate
delay of the applicant in bringing this application cannot be sustained under rules 2(2) and 35 of the
Rules of this court and the application lacks merit and it.
In the case of Fang Min vs. Dr. Kaijuka Mutabaazi S C Civil Application No. 06/2009 an
application was brought under rules 2(2), 35 & 42 of the Rules of the Supreme Court. In the
application, the applicant sought court to recall 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.” The Supreme court made an alternative order in its judgment that “if the specific
performance cannot be performed then the respondent is to pay to the appellant, by way of
damages, the market value of the suit house.” It is against this highlighted alternative order that this
application is made.
Supreme Court held that the law governing the slip rule is rule 35 (1) of the Supreme Court Rules. It
reads thus: “A clerical or arithmetical mistake in any judgment of the court or any error arising in
it from accidental slip or omission may, at any time, whether before or after the judgment has been
embodied in an order, be corrected by the court, either of its own motion or on the application of
any interested person so as to give effect to what was the intention of the court when the judgment
was given.” That this court in Orient Bank Limited vs. Fredrick Zabwe and Anor SCCAPP No.
17/2007 stated the scope of the application of this rule. There, the court stated as a general rule that
“the decision of this court on any issue of fact or law is final, so that the unsuccessful party cannot
apply for its reversal - - - - - - . - - - under rule 35 (1), this court may correct inter alia any error
arising from accidental slip or omission in its judgment, in order to give effect to what was its
intention at the time of giving judgment.” To buttress that point, this court quoted with approval an
explanation by Sir Charles Newbold, P. in Lakhamishi Brothers Ltd. - vs - R. Raja and Sous
(1966) EA 313 at p. 314 where he said: “I would here refer to the words of this court given in the
Ranaiga case(1965) EA at p. 703as follows: ‘A court will, of course, only apply the slip rule where it
is satisfied that it is giving effect to the intention of the court at time when judgment was given or in
the case if 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.’ ” That the above position still holds
good. It is therefore, now fairly well settled that there are two circumstances in which the slip rule
can be applied namely: 1. where the court is satisfied that it is giving effect to the intention of the
court at the time when the judgment was given; or 2. 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. That clearly, payment of the market value of the suit house if the specific
performance cannot be performed was not included in the respondent’s prayers. The inclusion of the
order of payment of the market value of the suit house if the specific performance cannot be
performed was therefore a slip. The fact that the respondent did not include that relief in his prayer
was overlooked. Had that fact been brought to the attention of the court, without doubt, the order for
payment of the market value of the suit house if the specific performance cannot be performed, would
not have been made. To give effect to the intention of the court is to remove the alternative order “for
payment, by way of damages, of the market value of the suit house if the specific performance
cannot be performed.” The order should stop at restoring the judgment and orders of the High
Court.
REVIEW OF DECREES AND ORDERS.

It is the general principle of law that the court after passing judgment becomes functus officio and
cannot revisit the judgment or purport to exercise a judicial power over the same matter. However
there are exceptions to the general rules as set out under the law that allows court to review its
judgment. Section 82 CPA, and O46 CPR. These provisions allow the High Court and Magistrates
Court to sit in their judgments through a process called Review.
Section 82 provides that any person considering himself or herself aggrieved (a) by a decree or order
from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a
decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to
the court which passed the decree or made the order, and the court may make such order on the
decree or order as it thinks fit.
Application for review is provided for in O.46 CPR. Rule 1 thereof provides for application for
review of judgments. Sub rule 1 provides that any person considering himself or herself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been
preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new
and important matter of evidence which, after the exercise of due diligence, was not within his or her
knowledge or could not be produced by him or her at the time when the decree was passed or the
order made, or on account of some mistake or error apparent on the face of the record, or for any
other sufficient reason, desires to obtain a review of the decree passed or order made against him or
her, may apply for a review of judgment to the court which passed the decree or made the order.
In the matter of Nakivubo Chemists (U) Ltd 1979 HCB 12, a minority shareholder petitioned court
that he had been oppressed by the majority shareholder. Several orders were made by the court and
one of them was to the effect that the Company’s account had to be audited to establish the stake each
shareholder and in particular the petitioner. At the time of the order it was not known that the
premises of the company and its property had been taken over by the custodian board. Auditors were
duly appointed but couldn’t audit because the board had destroyed the company’s books of accounts.
The petitioner then applied under section 83 CPA and O42 CPR for review of the order for auditing
the companies’ accounts. The petitioner / applicant prayed that the court assess or determine his stake
in the company and his entitlement from the respondent relying on the evidence already recorded and
other evidence that he may produce. The application was opposed on ground that the applicant wasn’t
an aggrieved party within the meaning of O.42 r 1. The court found that the expression ‘any
aggrieved’ within the meaning of section 83 CPA and O.42 r 1 CPR means that a person who has
suffered a legal grievance, that the instant case the applicant could not be aggrieved by the earlier
order requiring auditing of the Company account because that was one of the remedies he had prayed
for in the petition. The court found that there cases upon which review of judgment or order is
allowed and these are;
a) Discovery of new and important matters of evidence previously overlooked by excusable
misfortune
b) Some mistake or error appearing on the face of the record
c) For any other sufficient reason but the expression sufficient should be read as meaning
sufficiently of a kind analogous to (a) and (b) above.
That from the facts of the instant case a new situation arose which wasn’t a valid ground for review
within the meaning of O.42 r 1. The Court found that as the applicant was aggrieved by extraneous
circumstances, the correct course was for him to apply to court for a new order as the previous order
couldn’t be implemented.
In the case of Kalokoka vs. Nduga HCMA No. 497 /2014 an application for Review of the judgment
and orders of the court in Civil Appeal No. 001 of 2013 striking out the appeal with costs. It was
brought under Sections 82 and 98 of the Civil Procedure Act and Order 46 r 1&2 of the Civil
Procedure Rules. The first issue was whether there are grounds for court to grant an order of review,
and secondly was whether the applicant is entitled to the orders sought in the application. Justice
Stephen Musota held on whether there are grounds for court to grant an order of review that it is trite
law just like the right of appeal, an order in review is a creature of statute which must be provided for
expressly. In considering an application for review, court exercises its discretion judicially as was
held in the case of Abdul JafarDevji Vs Ali RMS Devji [1958] EA 558. The law under which review
is provided is Section 82 of the Civil Procedure Rules and Order 46 of the Civil Procedure Rules.
That the grounds for review are clearly provided for and were outlined in FX Mubwike Vs UEB
High Court Misc. Application No.98 of 2005. These are: 1. That there is a mistake or manifest
mistake or error apparent on the face of the record.2. That there is discovery of new and important
evidence which after exercise of due diligence was not within the applicant’s knowledge or could not
be produced by him or her at the time when the decree was passed or the order made.3. That any
other sufficient reason exists. That the applicant appears to rely on the 1st and 3rd reasons. Regarding
whether there is a mistake or error apparent on the face of the record, examples of such situation
could be where a suit proceeds ex-parte when there is no affidavit of service on record; see: Edison
Kanyabwere Vs PastoriTumwebaze SCCA 61/2014 or where the court enters a default judgment
when there is no affidavit of service or where a summary judgment is entered under Order 36 when
there is a pending application for leave to appear and defend on record. Therefore, misdirection by
judicial officer on a matter of law cannot be said to be an error apparent on the face of the record. An
error apparent on the face of the record was defined in Batuk K. Vyas Vs Surat Municipality AIR
(1953) Bom 133 thus:“No error can be said to be apparent on the face of the record if it is not
manifest or self-evident and requires an examination or argument to establish it…………..” That
in the instant case therefore, no error apparent on the face of the record. What is being raised by
learned counsel for the applicant requires examination and argument.
In the case of Mboizi v. Dauli& 4 Ors HCMA No. 80/2014 an application for review of the judgment
in CA No. HCT-04-CV-CA-106-2010. It was brought under Section 33 of the Judicature Act,
Section 82 and 94 of the Civil Procedure Act and O.46 r.1, 2 and 8 of the Civil Procedure Rules.
Justice Henry Kaweesa held that Review is provided for under section 82 of the Civil Procedure Act
and also O.46 r. 1 of the Civil Procedure Rules. That while discussing the above provisions Sir
UdoUdoma in Nakabugo v. Attorney General (1967) (EA) 60, noted that: “The provision would only
apply where there has been a discovery of new and important matter or evidence which after the
exercise of due diligence was not within the knowledge or could not be produced by the applicant at
the time when the order or decree complained of was made.” That the same was quoted in Joyce L.
Kusulakweguya v. HaderSomaru&NajibMubiru MSC App. 40 of 2007 by Hon. J. Kiryabwire (as he
then was) pointing out that; “the purpose of review is to guard against injustice and abuse of court
process because the court did not have the correct evidence before at the time of the hearing due to
no culpable fault of an aggrieved person.” That the facts as enumerated show that Applicant filed CS
0007/70 before Magistrate Grade 2 Court at Kibuku. The Respondent appealed to the Chief
Magistrate at Tororo (Appeal 70 of1983). This appeal was dismissed on 18/September/1986.
Respondent again filed Mbale appeal 45 of 1999 before Chief Magistrate which applicant argues was
res judicata, filed out of time and without leave of court to appeal out of time. The appeal was
nonetheless determined in favour of Respondent. Applicant appealed to the High Court Mbale under
CA.106/2010 and lost. Applicants allege that the High Court also entertained the appeal in error since
it arose from an illegal appeal. It was further held that the application has shown and brought to light
three very important facts. 1 that the Respondent fraudulently instituted Mbale Appeal 45/1999 well
aware that he had earlier on filed CA 70 of 1983 at Chief Magistrate’s Court of Tororo, which was
dismissed on 18th September 1986. The above appeal was brought in total disregard of the law of
procedures which limits appeals and requires specific leave to appeal out of time. The appeal
violated the rule as to res judicata. It abuses the rules governing the jurisdiction of courts. 2. The
High Court in determining HCT Appeal 04-CV-CA-106/2010 did not have the correct evidence
before it at the time of the hearing and based itself on an irregular decision before the Chief
Magistrate Mbale which had no basis to Civil Suit 007/1979 of Kibuku. 3. The Respondent was not
properly represented by the Lawyers in the Mbale cases so as to draw the anomalies to the attention
of both appellate courts. That this is a proper case for review in which this court must guard parties
against injustice and abuse of court process. That it has been demonstrated that at the time of hearing
both the Chief Magistrate Court of Mbale in Civil Suit Appeal 45 of 1999 and the High Court in Civil
Appeal No. HCT-CV-CA-106 of 2010 both courts did not have the correct evidence before them at
the time of the hearing and this was not due to any culpable fault of the applicant; since both Counsel
never drew the illegal nature of the proceedings to the attention of both appellate courts, this failure
will not be visited on the applicant. That the two appeals that is CA 45 of 1999 and HC-04-CA-
106/2010 were null and void, irregular and illegal and are accordingly set aside as prayed.
Review jurisdiction is applicable to consent judgments. The principles applicable to review of consent
judgments are the same principles applicable to set aside a consent judgment.
In the case of Attorney General & Anor vs. James Mark Kamoga&Anor SCCA No. 8 /2004 this
second appeal arose from an application the appellants filed in the High Court seeking review of a
consent judgment 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 on 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. Supreme Court held that while section 83 of the CPA vests in the High Court supervisory
jurisdiction to revise decisions of magistrates’ courts, which are subordinate to it, section 82 of the
CPA empowers the High Court to review its own decisions. The conditions on which the two
jurisdictions are invoked are necessarily different; and so are the principles applicable to their
exercise.
That the powers of the registrar of the High Court are circumscribed. Unlike a judge of the High
Court who exercises the entire jurisdiction vested in that court, a registrar of the High Court can only
exercise such jurisdiction of that court as is delegated by or under legislation. The powers of
registrars are set out in Order 50 of the CPR and enhanced in Practice Direction No.1 of 2002. It
suffices to say that the former confers on the registrar powers to enter judgment in uncontested cases
and consent judgments, to deal with formal steps preliminary to the trial and with interlocutory
applications and to make formal orders in execution of decrees; and the latter empowers the registrar
to handle matters governed by specified rules and Orders of the CPR, which do not include any rule
of Order 46. Clearly, the power to review judgments or orders of the High Court, (including those
entered by the registrar) is not among the powers delegated to the registrar. That by entertaining the
application in the instant case the trial judge did not breach any rule. That as regards Considerations
in Review of Consent Decree - Section 82 of the CPA provides –“Any person considering himself or
herself aggrieved –
(a) by a decree or order from which an appeal is allowed by
this Act but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed…
may apply for a review of the judgment to the court which passed
the decree or made the order….” (Emphasis is added)
That Order 46 rule 1 of the CPR reiterates this provision but adds a condition to the effect that the
applicant’s desire to apply for the review is -
“from discovery of new and important matter or evidence, which after the exercise of
due diligence, was not within his or her knowledge or could not be produced….at the
time when the decree was passed or the order made, or on account of some mistake or
error apparent on the face of the record or for any other sufficient reason.” (Emphasis
is added)
That a party against whom a consent decree is passed may, notwithstanding the consent, be
wrongfully deprived of its legal interest if, for example, the consent was induced through illegality,
fraud or mistake. Obviously, such party is aggrieved within the meaning of Order 46. That it should
be noted that the provisions of Order 46 r.1 are so broad that they are applicable to all decrees
including consent decrees. That the crucial issue for determination in the instant case is whether there
was sufficient reason for reviewing or setting aside the consent judgment. That the principle upon
which the court may interfere with a consent judgment was outlined by the Court of Appeal for East
Africa in Hirani vs. Kassam(supra) in which it approved and adopted the following passage from
Seton on Judgments and Orders, 7th Ed., Vol. 1 p. 124:“Prima facie, any order made in the
presence and with consent of counsel is binding on all parties to the proceedings or action, and
cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary
to the policy of the court … or if the consent was given without sufficient material facts, or in
misapprehension or in ignorance of material facts, or in generalfor a reason which would enable a
court to set aside an agreement.” Subsequently, that same Court reiterated the principle in Brooke
Bond Liebig (T) Ltd. vs. Mallya (supra) and the Supreme Court of Uganda followed it in Mohamed
Allibhai vs. W.E. Bukenya and Another Civil Appeal No.56 of 1996 (unreported). It is a well settled
principle therefore, that a consent decree has to be upheld unless it is vitiated by a reason that would
enable a court to set aside an agreement, such as fraud, mistake, misapprehension or contravention of
court policy. This principle is on the premise that a consent decree is passed on terms of a new
contract between the parties to the consent judgment. It is in that light that I have to consider the
consent decree in the instant case. That the consent decree was not shown to be vitiated in any way to
warrant interference through review or otherwise.
In the case of Mapalala vs. BBC (2002) 1 E.A 132 the Court found that in this case that the grounds
for review are set out in order 42 R 1 and that the court gives judgment on orders sought in the plaint,
that to allow a review application on a basis of difficulty in execution is not only an abuse of court
process but also lead to endless litigation.
Any aggrieved party can apply for review, he / she need not be a party. Both sec 82 and O.46 allow
any person who considers himself to be aggrieved by a decree in order to apply to the court that
passed that decree or order for review. In the case of Adonia vs. Mutekanga 1970 E.A 479 Court
found that the right to apply for review isn’t restricted to parties but it’s available for any person
considering himself aggrieved. In this case the order wasn’t made against the respondent but it
operated against him making him an aggrieved party for purposes of review.
A person is deemed to be legally aggrieved where he has suffered a legal grievance in the sense that
he had a direct interest in the subject matter and has been injuriously affected.
In the case of Mohammed Alibhai vs. Bukenya SCCS No. 56/119 the appellant who didn’t disclose
that he was an attorney applied for review. The court found that he couldn’t have suffered any legal
grievance and so he couldn’t apply for review of the order of court.
Whereas O.46 provide for specific grounds and the applicant can only succeed in satisfaction of one
at least one of the 3 grounds, s.82 confers wide discretion on the court i.e. O.46 has restriction but
s.82 is so wide. In the case of Uganda Commercial Bank vs. Mukoome Agencies [1982] HCB 22
Court of Appeal held that section 83 of the Civil Procedure Act must be read without any limitation
imposed by order 42 (now 46) r 1 of the Civil Procedure Rules. That the words ‘any other sufficient
reason’ are to be construed ejusdem generis with one or other of the two preceding classes of the case
under O.42 r 1 of the CPR.
The jurisdiction to entertain an application for review is vested in the same court that passed the
decree or made the order. In the case of Re Dr. John Chrizestom Kiyimba Katto M.C No. 29/1989
held that under O.42 r 1 the application for review should come before the very judge who made the
order it is sought to review.
Where the presiding officer has left the bench or is no longer at that particular station, then the new
judge / magistrate will entertain that application. In the case of Henry Munyangaizi vs. General
Machinery Ltd HCCS No. 468 of 1993 it was held that where a case is admitted to review by one
judge and is afterwards tried by another, the new judge must confine himself to the points directed by
the other for the review. A Judge granting a review on one point has no power to go into or decide a
matter already finally adjudicated upon. Secondly that parties cannot be allowed to amend pleadings
after the order for review.
An application for review is a bar to subsequent orders for review. No application to review an order
made on application to review of a decree or order made on review shall be entertained-O46 r 7 CPR.
REVISION OF JUDGEMENTS /DECISIONS

It is also a situation where higher court sits on the judgment lower court. These powers are only
available to the High Court of Uganda (and no other court). It is provided for under section 83 CPA.
That the High Court may call for the record of any case which has been determined under the Act by
any magistrate’s court, and if that court appears to have—
(a) exercised a jurisdiction not vested in it in law;
(b) failed to exercise a jurisdiction so vested; or
(c) acted in the exercise of its jurisdiction illegally or with material irregularity or injustice, the
High Court may revise the case and may make such order in it as it thinks fit; but no such
power of revision shall be exercised—
(d) unless the parties shall first be given the opportunity of being heard; or
(e) where, from lapse of time or other cause, the exercise of that power would involve serious
hardship to any person.
In the case of Bameka vs. Nviri (1973) ULR 134 it was brought to the attention of court following a
complaint by the plaintiff concerning the manner in which the trial magistrate was alleged to have
handled the litigation. The plaintiff had alleged corruption on part of the trial magistrate to the Chief
Justice although he did not repeat the allegations in the proceedings to the High Court. The High
Court found that it had powers of revision under the Civil Procedure Act. It observed further that the
mere fact that the court came to a wrong decision even on a point of law was not sufficient to
constitute an illegality or irregularity i.e. an erroneous decision wasn’t for itself a ground for revision.
A distinction was drawn between illegality and irregularity in the case. The court said that a
distinction has been drawn between cases in which a judge omits to do something which statute
enacts shall be done and a case in which a judge does something which a statute says shall not be
done. In the former case the omission may not amount to more than an irregularity in procedure, in
the latter the doing of the prohibited thing is ultravires and illegal and without jurisdiction. The court
observed that material irregularity implies only on committee of an error or procedure whilst acting
illegally means something less or not. However it is clearly that irregularity is something less than an
illegality and before the court will interfere it must be shown to be material. That is, an irregularity
which has prejudicially affected the merits of the case.
In the case of Johnrick Trading Co. & Property Consultants Ltd vs. Electrol Controls Switch Gear
Ltd (Civil Revision Cause No. 009 of 2014) (Arising from the Chief Magistrate’s Court of Nabweru
Civil Suit No. 104 of 2014) an application for revision of the decision of the Magistrate Grade 1
Nabweru Court brought by way of Notice of Motion under Section 33 of the Judicature Act, Section
83 and 98 of the Civil Procedure Act and Order 52 rule 1, 2 & 3 of the Civil Procedure Rules. The
first issue was whether this is a proper case for revision. Justice Stephen Musota held that according
to the decision in Matemba versus Yamulinga [1968] EA 643, for a case to be proper for a revision
order it must be a case decided by any Magistrates Court and the complaint must relate to the exercise
of jurisdiction. That the meaning of the phrase case decided for purposes of revision was considered
in the case of Rothblum Vs EbrahimHajec Ltd [1963] EA 47 to be wider than a suit. It was held
that even an order setting aside an expartedecree is a case decided for purposes of revision. Therefore
an order made by the lower court to proceed with formal proof was a case decided by that court. That
in the instant case, after a default judgment was entered in favor of the respondent, the applicant
applied for the same to be set aside and the application was fixed for 30th September 2014 as per
annexture “C” to the affidavit in reply. Before the application could be disposed of, the learned trial
Magistrate on an earlier date of 1st September 2014 ordered that the main suit proceeds for formal
proof. That this was materially irregular and it tantamount to a case decided for purposes of revision
as regards the manner in which the trial Magistrate exercised her jurisdiction. The second issue was
whether there are grounds for revision. It was held that according to Section 83 of the Civil Procedure
Act, the grounds for revision are: 1. Failure to exercise jurisdiction vested, 2. Exercising jurisdiction
not vested in court. 3. Exercising jurisdiction vested but illegally or with material irregularity. That
in the instant case, whereas the learned trial magistrate is vested with jurisdiction to entertain a matter
for formal proof where an interlocutory judgment had been entered, it was an irregularity on her part
to order for formal proof while there was a pending application to set aside the interlocutory
judgment moreover fixed by her. This was an irregularity which calls for an order of revision by this
court. The third issue was whether the applicant is entitled to the orders sought in the application. It
was held that court will therefore make a revision order in this matter bearing in mind that none of the
parties will encounter serious hardships and in the interest of justice. Consequently court found that
the learned Magistrate exercised jurisdiction vested in her with material irregularity. Her order to
proceed with formal proof will be set aside. The application to set aside the default judgment should
be heard and disposed of before any other proceedings in the matter and costs to be in the cause.
The section relates only to jurisdiction and the High court will not interfere merely because a lower
court allowed an application which was barred by limitation. In the case of Matemba vs. Yamulinga
(1968) EA 643, Mustafa J held that; “It will be observed that the Section applies to jurisdiction
alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is
not directed against conclusion of the law or fact in which the question of jurisdiction is not
involved….as regards alleged illegality or material irregularity urged by the applicant,
according to the case of Amir Khan vs SheoBaksh Singh (1885) 11 Cal. 6; 11 1. A 237 a Privy
Counsel case it is settled that where a court has jurisdiction to determined a question and it
determines that question, it cannot be said that it has acted illegally or with material
irregularity because it has come to erroneous decision on a question of fact or even of law.”
In the case of Paskali Juma Wasike vs. Alex Onyango HCMA No. 04/2010 Justice Stephen Musota
held that the Constitution of Uganda and the Judicature Act give the High Court unlimited original
jurisdiction in all matters, be they civil or criminal. These powers cannot be removed by implication.
For a written law to oust such jurisdiction, it must expressly state so which is not the case under the
Local Council Courts Act. That in view of S.40 of the Local Council Courts Act, the High Court has
supervisory powers over Local Council Courts and for this purpose those courts are subordinate to the
High Court. It is common knowledge that the high court can either on its own motion usually while
inspecting Magistrates Courts (in this case Local Council Courts) or when its attention is drawn by 3 rd
parties to certain irregularities:“Call for the record of any case which has been determined by any
subordinate court or Magistrate’s Court” and for reasons set forth in S.83 revise the said case
making such order as it thinks fit. That the law of Revision applies to jurisdiction alone, the irregular
exercise or non-exercise or the illegal assumption of it. The law is not directed against conclusions of
law or fact in which the question of jurisdiction is not involved. Where a court has jurisdiction to
determine a question and it determines it, it cannot be said that it acted illegally or with material
irregularity because it has come to an erroneous decision on a question of fact or law. MUTEMBA V.
YAMULINGA [1968] EA 643
Court can revise a decision under s.83 CPA even where an appeal would lie.
In the case of Twine Amos vs. Tamusuza James (Civil Revision No. 11 of 2009 the applicant brought
the application under the provisions of s. 83 of the Civil Procedure Act (CPA). He sought for the
revision of the proceedings in Mukono C/S 59 of 2008 and for an order setting aside the judgment of
Magistrate GI .Justice Irene Mulyagonja held that the Black’s Law Dictionary (9 th Edition) defines
revision as “a re-examination or careful review for correction or improvement” or “an altered
version of work.” That in the case of Hitila v. Uganda [1969] 1 E.A. 219, the Court of Appeal of
Uganda held that in exercising its power of revision the High Court could use its wide powers in any
proceedings in which it appeared that an error material to the merits of the case or involving a
miscarriage of justice had occurred. It was further held that the Court could do so in any proceedings
where it appeared from any record that had been called for by the Court, or which had been reported
for orders, or in any proceedings which had otherwise been brought to its notice.
That it was ruled in a recent decision in the case of Munobwa Mohamed v. Uganda Muslim
Supreme Council, Civil Revision No. 001 of 2006, the powers of this court in revision are not
limited. The powers do not seem to be precluded in cases where an appeal could be preferred. This is
fortified by the decision in Charles Kasirye v. M. D. Patel [1972] ULR 106, where Faud, J. ruled
that unlike the position in India under s. 115 of the Indian Code of Civil Procedure the revisional
power of the High Court was taken away where an appeal lay. Perusal of the Indian Code of Civil
Procedure (1908, as amended) shows that s.115 (2) thereof provides as follows”“(2) The High Court
shall not, under this section, vary or reverse any decree or order against which an appeal lies
either to the High Court or to any Court subordinate thereto.” That the CPA in this jurisdiction
has no such provision. Therefore this court can revise a decision under s.83 CPA even where an
appeal would lie. Suffice it to add that ordinarily, when this court entertains an appeal, it often revises
the proceedings of the lower court. That therefore the applicant’s failure to appeal the decision
refusing to set aside the interlocutory judgment in order that he may also have leave to file a WSD
and defend the suit did not in any way bar him from bringing this application. The application was
therefore properly before court under the provisions of s.83 CPA and was not an abuse of court
process.
Revision is not available were it is sought belatedly to the detriment of third parties who may be
required in the subject matter of the suit. In the case of Kabwengure vs. Charles Kanjabi [1977]
HCB 89 held that under the proviso to section 84 of the Civil procedure Act, the Court cannot
exercise its provisional power where there was lapse of time or other cause, the exercise of such
power would involve serious hardship to any person.
However in the context of the orders of the registrar of the high court, no power of revision is
available as their decision are deemed to be of a high court (notwithstanding) that they may be at
level of the chief magistrate. The Court of Appeal held in Ddegeya Trading Stores (U) Ltd vs. URA
Civil Appeal No.44 of 1996 turned on the finding that the High Court’s revisional power applies to
decisions of the magistrates’ courts only. The court said –“The Registrar, his deputy and/or assistant
are officers of the High Court. They are not governed by the Magistrates Courts Act when they sit
as a court. Under Order [50] Rule 4 of the Civil Procedure Rules a Registrar presides over a civil
court when dealing with matters under Order [50] Rules 1, 2, & 3 of the Civil Procedure Rules.
Under the Advocates (Remuneration and Taxation of Costs) Rules under which the proceedings,
the subject matter of this appeal took place, the Registrar or taxing officer was not a magistrate’s
court. He proceeded to deal with the bill of costs as an officer of the High Court to which the bill of
costs had been presented. We agree that the learned judge erred in law when he applied section
[82] of the Civil Procedure Act which in the circumstances was inapplicable.”
See also A.G & Uganda Land Commission vs. James Mark Kamoga
The appropriate relief available to a party aggrieved with an order of a registrar is to seek for review
before a judge under s.82 and O.46 CPR or to appeal under O.50 r 8 of the rules. See Shumuk
Investments Ltd vs. Bonny Katatumba
A court cannot entertain an application an application for revision except where the adverse party is
duly notified by way of serving a hearing notice.
The procedure of application for revision is that an aggrieved party writes to the High court registrar
drawing his attention to irregularity of a subordinate court and request that the matter be brought
before a judge. See LDC VS. Edward Mugalu (1990-1991) 1 KALR 103. Also see s. 39(2) Judicature
Act.
However, in practice, the High Court has always insisted that the aggrieved person should make a
formal application to court by way of notice of motion.
Major Roland V. Kakooza Mutale [2000-2005] HCB
APPEALS
An appeal refers to a proceeding taken to rectify an erroneous decision of court by bringing it before a
higher court. The appellate process is a grim reminder that courts to make mistakes. So it is in the
pursuit of justice that higher courts with more personnel, with more experience should sanction and
criticize, and in many cases overturn decisions of their junior colleagues where they are persuaded
that justice has been compromised.
Questions as to the possibility of appealing may arise during the interlocutory stages of an action or
after trial and judgment. An appeal is an application to set aside or vary the decision of another
tribunal / court on the ground that it was wrongly made. In the case of F X Mubuuke vs. UEB
HCMA No.98/2005 defined an appeal as a rehearing by the appellate court of substantial question of
law and fact taken by an aggrieved litigant. The rehearing deals with opening up of all issues the
subject of appeal.
There is no right of appeal against judgment or order of court of competent jurisdiction unless the
statute expressly so provides. In the case of Shah vs. A.G No.4 [1971] E.A held that the right to
appeal must be conferred by the relevant Act.
Often a party to an action which has been tried by the court would be sufficiently dissatisfied with the
court’s decision and sufficiently hopeful that it must be reversed or varied on appeal to the higher
court-refers the matter to higher court requires it to exercise its appellate jurisdiction. The appellant
may wish to complaint that the trial court was mistaken in its view of the law or the application of the
evidence or that it wrongly admitted or excluded certain evidence. An appeal may be given before
any final decision has been given at the trial against some decision of the court on an interlocutory or
procedural matter. Any person who was a party to the proceedings in the court of original jurisdiction
may appeal. A person bringing the appeal is called the appellant and the person against whom the
appeal is brought is called the respondent.
The procedure of appeal is a complaint against the decision which court made be it fact or law. The
relevant law include the constitution which define the hierarchy of courts, Judicature Act which sets
out powers of the appellate court, Civil procedure Act, Magistrate Court Act, Civil Procedure Rules,
Court of Appeal Directions 1996, Supreme Court Rules Directions 1996 and any other law
applicable.
Appellate Jurisdiction.
In general the right of appeal must be given by an Act of parliament although there are situations
where an appeal is as of right. In other cases especially from interlocutory matters appeals lie usually
only by leave of the court. There is no such thing as inherent appellate jurisdiction. Any party who
seeks to avail himself/herself of the right of appeal must strictly comply with the conditions
prescribed by the statute.
The Supreme Court.
Under Art. 132(1) of the Constitution, the Supreme court is the highest appellate court and final court
of Appeal in civil matters. An appeal shall lie to the Supreme Court from such decisions of the Court
of Appeal as may be prescribed by law-Art. 132 (2) of the Constitution. Section 6 (1) Judicature Act
Cap.13 provides for the powers. Provides that an appeal shall lie as of right to the Supreme Court
where the Court of Appeal confirms, varies or reverses a judgment or order, including an
interlocutory order, given by the High Court in the exercise of its original jurisdiction and either
confirmed, varied or reversed by the Court of Appeal.
Section 6 (2) J.A provides that where an appeal emanates from a judgment or order of a chief
magistrate or a magistrate grade I in the exercise of his or her original jurisdiction, but not including
an interlocutory matter, a party aggrieved may lodge a third appeal to the Supreme Court on the
certificate of the Court of Appeal that the appeal concerns a matter of law of great public or general
importance, or if the Supreme Court considers, in its overall duty to see that justice is done, that the
appeal should be heard.
In the case of Lwanga VS. Kabagambe Civil Application No. 125 of 2009 anapplication by notice
of motion brought under Section 6(2) of the Judicature Act and Rule 40(2), 41, 42(2) and 43(1) of the
Rules of this Court orders that a Certificate be granted to the applicant to appeal to the Supreme
court and Costs of the application be provided for. The case originated in Mityana Chief Magistrates
Court (Civil Suit No. 34/2001 (before Magistrate Grade I). The Applicant (then Plaintiff) sued the
respondent (then the defendant) for trespass on his land. In his Plaint he described himself as
"owner" and also alleged that his late father had a lease offer on the land the subject hereof. He got
judgment in his favour, against which the respondent / defendant appealed, and won (High Court
Nakawa Civil Appeal No. 27/ 04). The Applicant then appealed to the Court of Appeal on the issues
inter alia, that the Appellate High Court Judge failed to appreciate the nature of the Plaintiff's claim
and cause of action; failure to evaluate the evidence on record, and as to whether he had any claim in
the suit land. Their Lordships on Appeal dismissed the Appeal.
On an application for certificate to appeal to the supreme court, Court of Appeal held that section
6(2) of the Judicature Act Cap 13 under which the application is brought stipulates as follows:-
Where an appeal emanates from a judgment or order of a chief magistrate or a magistrate grade I
in the exercise of his or her original jurisdiction, but not including an interlocutory matter, a party
aggrieved may lodge a third appeal to the Supreme Court on the certificate of the Court of Appeal
that the appeal concerns a matter of law of great public or general importance, or if the Supreme
Court considers, in its overall duty to see that justice is done, that the appeal should be heard.”)
That it appears that the Court of appeal may only issue a Certificate under the above law in the
following instances; Where the intended appeal to the Supreme court concerns a matter of law of
great Public importance.(ii) Where the intended appeal raises a matter of law of general
importance” That for the court of appeal to grant a Certificate sought by the applicant herein, it must
be satisfied that the intended appeal to the Supreme Court concerns a matter of law. That, that matter
of law must be either of great public importance or of general importance. The law does not define
the terms ‘great importance and or general importance’ referred to in Section 6(2) of the Judicature
Act. Guidance in this matter may be sought from a recent decision of the Supreme Court of Kenya in
the case of Hermanus Phillippus Steyn vs Giovanni Gnecchi-Ruscone Application No. 4 of
2010(Supreme Court of Kenya) in which that Court whilst dealing with a similar matter stated as
follows:- 1. “A matter of general public interest could take different forms for instance, an
environmental phenomenon involving the quality of air or water which may not affect all people,
yet it affected an identifiable section of the population, a statement of law which may affect a
considerable number of people in their commercial practice or in their enjoyment of fundamental
or contractual rights or a holding on law which may affect the proper functioning of public
institutions of governance or the Court's scope for dispensing redress or the mode of discharge of
duty by public officers. 2. The governing principles that a matter before court merited
certification as one of general public importance were :i for a case to be certified as one
involving a matter of general public importance, the intending appellant ought to have satisfied the
Court that the issue to be canvassed on appeal was one the determination of which transcended the
circumstances of the particular case and had a significant bearing on the public interest; ii. where
the matter in respect of which certification was sought raised a point of law, the intending
appellant ought to have demonstrated that such a point was a substantial one, the determination of
which would have a significant bearing on the public interest; iii. such question or questions of law
must have arisen in the lower courts and must have been the subject of judicial determination; iv.
where the application for certification had been occasioned by a state of uncertainty in the law
arising from contradictory precedents, the Supreme Court could either resolve the uncertainty as it
may determine, or refer the matter to the Court of Appeal for its determination; v. mere
apprehension of miscarriage of justice in a matter most apt for resolution in the lower superior
courts was not a proper basis for granting certification for an appeal to the Supreme Court. The
matter to be certified for a final appeal in the Supreme Court ought to fall within the terms of
Article 163 (4)(b) of the Constitution; vi. the intending applicant had an obligation to identify
and concisely set out the specific elements of general public importance which he or she attributed
to the matter for which certification was sought; vii. determinations of fact in contests between
parties were not by themselves, a basis for granting certification for an appeal before the Supreme
Court.”That the onus is on the applicant to satisfy the Court that indeed the question intended to be
determined on appeal is one of great public or general importance. That the question set out by the
applicant referred to above appears to be a question of fact, which is not provided for under Section
6(2) above in respect of an application before this court. That unlike the Supreme Court, the power
of the Court of Appeal in an application of this nature are restricted. In the case of Namudu Christine
vs Uganda Criminal Appeal No. 3 of 1999 (Supreme Court) (Unreported). Wambuzi CJ noted as
follows:-“Under subsection (5) of S.6, this Court will grant leave if the court, in its overall duty to
see that just is done, considers that the appeal should be heard. In other words this court is not
bound by the restrictions placed on the Court of Appeal, when that court is considering an
application for a certificate. The Court of Appeal grants a certificate where it is satisfied:(a) that
the matter raises a question or questions of law of great public importance; or (b) that the matter
raises a question or questions of law of general importance. On the other hand, this Court will
grant leave if it considers that in order to do justice the appeal should be heard. Anything relevant
to doing justice will be considered including questions of law of general or public importance. It
appears to us that in deciding whether or not to grant leave we are not restricted to questions of law
like the Court of Appeal. We have power to consider other matters.”That the Court of Appeal
therefore cannot consider other matters outside the ambit of Section 6(2) of the Judicature Act and the
applicant has not demonstrated to the satisfaction of the Court that the intended appeal raises a
question or questions of law of great public importance or of general importance as defined by the
law.
Section 7 J.A provides that for the purposes of hearing and determining an appeal, the Supreme Court
shall have all the powers, authority and jurisdiction vested under any written law in the court from the
exercise of the original jurisdiction of which the appeal originally emanated.
Section 8 (1) J.A provides that a single justice of the Supreme Court may exercise any power vested
in the Supreme Court in any interlocutory cause or matter before the Supreme Court. e.g. application
of security for costs, extension of time etc. However any person dissatisfied with the decision of a
single justice in the exercise of a power is entitled to have the matter determined by a bench of three
justices of the Supreme Court which may confirm, vary or reverse the decision through a process
called reference.
Court of Appeal
Art. 134(2) provide that an appeal shall lie to the Court of Appeal from such decision of the High
Court as may be prescribed by law. Section 10 J.A provides that an appeal shall lie to the Court of
Appeal from decisions of the High Court prescribed by the Constitution, Judicature Act or any other
law.
S.66 CPA provides that unless otherwise expressly provided in the Act, an appeal shall lie from the
decrees or any part of the decrees and from the orders of the High Court to the Court of Appeal.
See Pius Niwagaba vs. LDC CACA No. 18/2005
UNEB vs. Mparo General Contractors SCCA No. 19/2004
Section 11 J.A provides that for the purpose of hearing and determining an appeal, the Court of
Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court
from the exercise of the original jurisdiction of which the appeal originally emanated.
Section 12 J.A a single justice of the Court of Appeal may exercise any power vested in the Court of
Appeal in any interlocutory cause or matter before the Court of Appeal and any person dissatisfied
with the decision of a single justice of theCourt of Appeal in the exercise of any power shall be
entitled to have the matter determined by a bench of three justices of the Court of Appeal which may
confirm, vary or reverse the decision.
The High Court

Under Art. 139(1) of the constitution and Section 14 (1) J.A the High Court has appellate and other
jurisdiction as may be conferred on it by the Constitution or this Act or any other law.
Section 16 J.A provides that subject to the Constitution, the Judicature Act and any other law, the
High Court shall have jurisdiction to hear and determine appeals which lie to it by virtue of any
enactment from decisions of magistrate’s courts and other subordinate courts in the exercise of their
original or appellate jurisdiction.
Under O.50 R 8 CPR any person aggrieved by any order of the registrar may appeal from the order to
the High Court and the appeal shall be by notice of motion.
The magistrate Act has also got provisions of powers of appeal. Section 220 provides that subject to
any written law and except as provided in this section, an appeal shall lie from the decrees or any part
of the decrees and from the orders of a magistrate’s court presided over by a chief magistrate or a
magistrate grade I in the exercise of its original civil jurisdiction, to the High Court, from the
decisions, judgments and orders of a magistrate’s court, whether interlocutory or final, presided over
by a magistrate grade II, to a court presided over by a chief magistrate, from decrees and orders
passed or made in appeal by a chief magistrate, with the leave of the chief magistrate or of the High
Court, to the High Court if the decision against which an appeal is intended involves a substantial
question of law or is a decision appearing to have caused a substantial miscarriage of justice.
Section 220 (5) MCA and Section 67(2) CPA no appeal shall lie from a decree passed or from a
decision, judgment or order given or made, as a result of the consent of the parties. A consent
judgment can only be set aside by the court which gave such judgment.
In the case of Afrique Co-op Society vs. URC (2002) 1 EA 1 Counsel for the applicant and
respondent came to an agreement regarding the amount payable to the applicant and an agreement
was recorded in the consent judgment and a decree by the trial judge. The respondent subsequently
changed counsel and applied for the consent judgment to be set aside. Counsel filed notice of appeal
and the applicant applied to strike out a notice of appeal on the ground inter alia that no appeal could
lie against a consent judgment. The court found that Section 69(2) CPA it is provided that no appeal
can lie from decree passed by court with the parties consent. In this case the record shown that the
advocate who entered the consent judgment had been duly instructed to represent the respondent and
had been acting within his authority when the he consented consent judgment.
Under section 60 Advocates Act any person affected by an order or decision of a taxing officer may
appeal within thirty days to a judge of the High Court who on such appeal may make any order that
the taxing officer might have made.
Under section 32(2) (d) Local Council Courts Act 13 of 2006 an appeal shall lie from decrees and
orders made on appeal by a chief magistrate, with the leave of the Chief magistrate or of the High
Court to the High Court.
Under section 145 Local Government Act, a person aggrieved by the determination of a lower court
on hearing an election petition may appeal to the High Court or Court of Appeal against the verdict.
Chief Magistrate
Under s.220(1)(b) Magistrate’s Court Act, an appeal shall lie from the decisions, judgments and
orders of a magistrate’s court, whether interlocutory or final presided by a magistrate grade II to a
court presided over by a chief magistrate.
Under section 32(2)(c ) an appeal shall lie from the judgment or orders of a town, division or sub
county local council court to a court presided over by a Chief Magistrate.
General provisions relating to appeals.
Sec. 80 CPA provides for power of appellate court. It provides that Subject to such conditions and
limitations as may be prescribed, an appellate court shall have power (a) to determine a case finally;
(b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to
require such evidence to be taken; (e) to order a new trial.
The appellate court shall have the same powers and shall perform as nearly as may be the same duties
as are conferred and imposed by the Act on courts of original jurisdiction in respect of suits instituted
in it.
General Principles and Powers of the 1ST 2ND and 3RD Appellate Courts.
1st Appellate Court

The duty of the 1st appellate court is to subject the entire evidence received in the lower court to a
fresh and exhaustive scrutiny and come to its own conclusion and it is under no obligation to agree
with the decision of the trial court if it finds that the evidence on record presumes otherwise
In the case of Victorious Education Services Ltd vs. Mega Consults Ltd HC Civil Appeal No. 7 of
2014 anappeal arose from the decision of the learned Chief Magistrate of Mengo. In the
memorandum of Appeal the ground was that the learned trial Chief Magistrate erred in law and
fact; when he selectively evaluated the evidence on record, thus arriving at a wrong conclusion.
Justice Peter Adonyo stated that the duty of the court is now well settled in that the court could
subject the entire evidence received in the lower court to a fresh and exhaustive scrutiny and come to
its own conclusion and it is under no obligation to agree with the decision of the trial court if it finds
that the evidence on record presumes otherwise as was pointed out in holding in the case of Rev.
Richard Mutazindwa v J.B. Agaba & 3 others CACA No. 40 of 2012. That the other cardinal
principle which guides the court as the first appellate court is that since the matter is coming on
appeal for the first time the parties are entitled to obtain from the court decisions on each issue of fact
as well as of law since court is entitled to weigh any conflicting evidence and draw own appropriate
inference and conclusion to each of the issue of fact and law proposed in the lower court and as was
directed by the Supreme Court through the decision of Gauldino Okello Ag JSC in the case of
Margret Kato & Joel Kato v Nulu Naluwoga SCCA No 03 of 2013 when it cited with approval the
decision in the English case of Coughlan v Cumberland [1898] 1 Ch. 704. That the Supreme Court
held ;“…even where as is in this case the appeal turns on a question of fact the Court of Appeal (as
a first appellate Court) has to bear in mind that its duty is to rehear of the case and the court must
reconsider the material before the judge with such other materials as it may have decided to admit.
The court must make up its mind not disregarding the judgment appealed from but carefully
weighing and considering it and not shrinking from overruling it if on full consideration the court
comes to the conclusion that the judgment is wrong…”.That this court being a first appellate court is
bound to follow that pronouncement of the Supreme Court since that court is the highest superior
court of record in Uganda and all the material evidence has been received in the lower court which
included documentary exhibits and all properly admitted oral evidence.
In the case of Tight Securities Ltd vs. Chartis Uganda Insurance Company Ltd & Anor HCCA No.
16/2014 Justice Hellen Obura stated that the role of court as the 1 st appellate court was discussed by
Mulenga JSC (RIP) in Fr. Narsensio Begumisa and Ors v Eric Tibebaga S.C.CA No. 17/2002. He
stated thus: “It is a well-settled principle that on a first appeal, the parties are entitled to obtain from
the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting
evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard
the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions”.
In the case of Stepheno Baraba vs. Kimuli 1977 HCB 137, this was an appeal against the judgment
of a chief magistrate in his appellate jurisdiction. The appellant had instituted a suit claiming that the
respondent had encroached on his land. He lost the suit and appealed to the Chief magistrate. He lost
the appeal and filed a second appeal to the High Court. The main contention of appeal was that the
respondent’s witness were new in the area and did not know the boundaries between the appellants
and the respondents. The appellant’s evidence in the trial court was supported by the Chief in the area
who gave the land to the appellant. The trial magistrate and the Chief magistrate failed to take this
piece of evidence into consideration and based his judgment on what one chief said at a locus in quo
but who was not called to testify as a witness. On appeal the Court found that both the trial and the
first appellate Court should have addressed their mind to the fact that the respondent’s witness never
knew the boundaries. It was very fundament al irregularity for the trial magistrate and the Chief
magistrate on appeal to have relied on what a chief who was not called as a witness had stated at locu
in quo. The court found that the law with regard to the approach to be adopted by the first appellate
court is that the evidence submitted before it must be examined a fresh and exhaustively so that it
weights the conflicting evidence and draws its own conclusion. It’s not a function of the appellate
court merely to scrutinize the evidence to see if there was some evidence to support the lower court
findings and conclusion. That it must make its findings and conclusion, that only which can it decide
whether the magistrate’s findings can be supported. However in so doing it should make the
allowance that the trial court has the advantage of hearing and seeing the witnesses. The Court of
appeal has power to draw inferences or fact and where it has all the necessary material before it this
power may enable it in reserving the decision of the court below itself rendering appropriate
judgment instead of rendering a new trial. That this is a nature of revaluation of evidence.
2ndAppellate Court
Section 72 CPA provides that except where otherwise expressly provided in the Act or by any other
law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in
appeal by the High Court, on any of the following grounds, namely that—
(a) the decision is contrary to law or to some usage having the force of law;
(b) the decision has failed to determine some material issue of law orusage having the force of
law;
(c) a substantial error or defect in the procedure provided by the Act or by any other law for the
time being in force, has occurred which may possibly have produced error or defect in the
decision of the case upon the merits.
An appeal lies as of right from the decree of the high court exercising appellate jurisdiction as a first
appellate court. There is no need to apply for leave provided the appeal is founded on the grounds
under section 72 CPA. In the case of Matendegyene & Ors vs. Kasikura & Ors [1992] IV KALR 89
held that sec.72 CPA provides the grounds upon which the 2 nd appeal to the Court of Appeal may
lodge in the court of appeal.
An appeal may lie under the section from an appellate decree passed ex parte.
The second appellate court the appeal lies on permitted questions of law or fact whose mandate is to
ascertain whether the 1st appellate court exercised the duty of evaluating the entire evidence on
record.
In the case of Stanbic Bank Uganda Ltd vs. Uganda Crocs Ltd SCCA No. 4 of 2004 Supreme Court
stated that in BancoArabeEspanol vs. Bank of Uganda (1998) LLR 84 (SCU)this court referred to
what it had said in Kifamunte Henry vs. Uganda (1997) LLR 72 (SCU)with approval:"it does not
seem to us that except in the clearest of cases, we are required to re-evaluate evidence like a first
appellate court. On second appeal, it is sufficient to decide whether the first appellate court in
approaching its task, applied or failed to apply such principles. See: D.R Pandya vs. R (1957) E.A
336; Kairu Vs. Uganda (1978) HCB 123This Court will no doubt consider the facts of the appeal to
the extent of considering the relevant point of law or mixed law and fact raised in any appeal, if we
re-evaluate the facts of each case wholesale we shall assume the duty of the first appellate court and
create unnecessary uncertainty, we can interfere with the conclusions of the Court of Appeal if it
appears that in consideration of the appeal as a first appellate court, the Court of Appeal misapplied
or failed to apply the principles set out in such decisions such as Pandya (Supra), Ruwala (Supra)
Kairu (Supra)".
The duty of the 2nd appellate Court considered in Kabalega vs. Muganga 1987 HCA No. 7 of 1987
Court found that the duty of the second appellate court is to consider whether the first appellate court
properly re-evalavuated the evidence on record. In this case it was on record that the 1 st appellate
court found part of the record before trial missing and yet didn’t consider the effect of the missing
part of the trial. On the second appeal it was found that in the absence of this vital evidence the first
appellate court couldn’t be said to have examined the evidence before it exhaustively.
In the case of Alice Janet Namisango vs. Chrisestom Galiwango [1986] HCB 37 Odoki J held that
in general second appeals were normally restricted to questions of law. As regards second appeals
from magistrate’s courts to the High Court, the Magistrates Court Act appeared to allow only appeals
involving points of law.
3rdAppellate Court
Section 6(2) Judicature Act provides that where an appeal emanates from a judgment or order of a
chief magistrate or a magistrate grade I in the exercise of his or her original jurisdiction, but not
including an interlocutory matter, a party aggrieved may lodge a third appeal to the Supreme Court on
the certificate of the Court of Appeal that the appeal concerns a matter of law of great public or
general importance, or if the Supreme Court considers, in its overall duty to see that Justice is done,
that the appeal should be heard. See the case of Lwanga VS. Kabagambe Civil Application No. 125
of 200.
Section 73 CPA provides that where an appeal emanates from a judgment of a magistrate grade II but
not including an interlocutory matter, a party aggrieved may lodge a third and final appeal to the
Court of Appeal on the certificate of the High Court that the appeal concerns a matter of law of great
public or general importance, or if the Court of Appeal in its overall duty to see that justice is done
considers that the appeal should be heard.
Under R. 87(12) and R.83 (9) of the Court of Appeal and Supreme Court rules where leave to appeal
or for a certificate that a point of law of general public importance is involved has been given or
refused by the High Court immediately following the delivery of the decision against which it is
desired to appeal, a statement that leave or a certificate has been given or refused shall be included in
the decree or order.
Where a third appeal is made from the Court of Appeal to Supreme Court the record of Appeal will
have to include the order, if any giving leave to appeal and also certificate of the Court of Appeal that
a point or points of law of great public importance arise.-R.83(2)(C) and (2)(h).
If any of the above document is missing from the record of appeal then such appeal is incompetent.
These documents are essential documents because they indicate that the appeal merits consideration
by the court. Their absence makes the appeal incompetent and should be struck out. See Beatrice
Kobusingye v Fiona Nyakana & Anor SCCA No. 18 of 2001.
Appeals in local council courts including interlocutory applications.

Appeals in local council system is principally regulated by s.32 and s.33 of the Local Council Courts
Act 2006. Also Local Council Courts Regulations 2007.
Section 32 provides that a party dissatisfied with the judgment or order of a local council court may,
subject to the provisions of the section or any written law, appeal against the judgment or order; but
no appeal shall lie from a judgment or order passed or made as a result of the consent of the parties.
An appeal shall lie—(a) from the judgment and orders of a village local council court to a parish local
council court;(b) from the judgment and orders of a parish local council court, to a town, division or
sub-county council court;(c) from the judgment and orders of a town, division or sub-county local
council court to a court presided over by a Chief Magistrate;(d) from decrees and orders made on
appeal by a Chief Magistrate, with the leave of the Chief Magistrate or of the High Court, to the High
Court.
Leave to appeal shall not be granted except where the intending appellant satisfies the Chief
Magistrate or the High Court that the decision against which an appeal is intended involves a
substantial question of law or is a decision appearing to have caused a substantial miscarriage of
justice. An application for leave to appeal shall, in the first instance, be made to the Chief Magistrate
within thirty days from the date of the decision sought to be appealed from and an application to the
High court for leave shall be made within the twenty-one days from the date on which the Chief
Magistrate refuses the application.
Section 33 provides that an appeal from a village, parish, town, division or sub-county local council
court shall be lodged within fourteen days from the date of the judgment or order appealed against;
and an appeal from the Chief Magistrate’s Court shall be lodged within fourteen days from the date
leave to appeal is granted. Every appeal shall be presented in a memorandum signed by the appellant,
setting forth the grounds of appeal, and the memorandum shall be substantially as set out in Form D
in the Fourth Schedule to the Act. The appellate court shall cause a notice of the memorandum of
appeal to be served on the respondent, and the notice shall be substantially as set out in Form E of the
Fourth Schedule to the Act.
In the case of Ndagahweire v Kaana Ephraim HCCAppeal No.8/2009, the appellant was dissatisfied
with the decision of the Chief magistrate sitting in her appellate jurisdiction in a civil appeal from
LCIII Court. The Court observed that the Appellant sued in LC I Court and lost, he appealed to LC II
where he lost then Appealed to LC III court where he lost. He appealed to the Chief Magistrate’s
Court where he lost hence this Appeal to the High Court. He has kept a protracted legal battle through
all these courts from 2007 until this day of a period of about (4) four years. Considering the case as a
whole his suits and Appeals have no merits whatsoever. It is the final verdict of the court that the
Appeal is hereby dismissed with costs to the Respondent on appeal and in the Lower court.
Appeals in Magistrate Courts from Magistrate Grade II

The law governing such appeals is s.220 MCA. It provides that, an appeal shall lie from the decisions,
judgments and orders of a magistrate’s court, whether interlocutory or final, presided over by a
magistrate grade II to a court presided over by a chief magistrate. Grade 1 has no appellate
jurisdiction.
Also appeal from decrees and orders passed or made in appeal by a chief magistrate, with the leave of
the chief magistrate or of the High Court, to the High Court.
Appeals from the Magistrate Courts to the High Court including interlocutory applications.
Procedure governing Appeals from the Chief Magistrate and Grade 1 to the High Court.
Right is provided for in section 220 (1) (a) and (c) MCA. It provides that subject to any written law
and except as provided in the section, an appeal shall lie from the decrees or any part of the decrees
and from the orders of a magistrate’s court presided over by a chief magistrate or a magistrate grade I
in the exercise of its original civil jurisdiction, to the High Court. From decrees and orders passed or
made in appeal by a chief magistrate, with the leave of the chief magistrate or of the High Court, to
the High Court. Leave to appeal for the purposes of subsection (1)(c) shall not be granted except
where the intending appellant satisfies the chief magistrate or the High Court that the decision against
which an appeal is intended involves a substantial question of law or is a decision appearing to have
caused a substantial miscarriage of justice.
In the case of Matayo Okumu vs. Fransisko Amudhe & 2 Ors [1979] HCB 229 Odoki Ag. J. held
that the effect of section 232 of the MCA which governs leave to appeal to the High Court is to
prohibit a Court granting leave to an applicant to lodge a second appeal to the High Court unless he
satisfies the court either that the intended appeal involves a substantial question of law or that the
decision which he intends to appeal appears to have caused a miscarriage of justice. That a substantial
question of law is involved where the point raised is one of general principles decided for the first
time, or where the question is one upon which further argument and a decision of the superior court
would be to the public advantage. That a decision appears to have caused a miscarriage of justice
where there is a prema facie case that an error has been made.
In the case of James Bunwa vs. Byayeshybaho [1976] HCB 224 held that no appeal (against the
appellate decree and judgment of the Chief magistrate) shall lie if leave to appeal is not granted under
section 232 (1)(c) of the Act. The power to grant leave to appeal is restricted to matters involving a
substantial question of law or where the decision to appeal against appears to have caused a
substantial miscarriage of justice. This before leave is granted these two conditions must be fulfilled
by the grounds on which leave to appeal is sought. And this leave to appeal can be granted for
consideration of a limited question only. There was nothing legally wrong in the order of the grant of
leave for consideration of the question of costs only which involved a substantial question of law.
Time for Appealing

Time for appeal begins to run when judgment or ruling is delivered. Section 79 CPA provides for
limitation of appeals. It provides that except as otherwise specifically provided in any other law,
every appeal shall be entered (a) within thirty days of the date of the decree or order of the court; or
(b) within seven days of the date of the order of a registrar, as the case may be, appealed against; but
the appellate court may for good cause admit an appeal though the period of limitation prescribed by
the section has elapsed. In computing the period of limitation prescribed by the section, the time taken
by the court or the registrar in making a copy of the decree or order appealed against and of the
proceedings upon which it is founded shall be excluded.
In the case of Haji Mohamed Nyanzi vs. Ali Segme [1992-1993] HCB 218 held that under section
80(1) CPA every appeal shall be entered within thirty days of the date of the decree or order, and the
time taken by the court, or register in making a copy of the decree or order appealed against and the
proceedings upon which it is founded shall be excluded. That under Order 18 r 17(2) CPR it is the
duty of the successful party to prepare without delay a draft decree and submit it to the magistrate for
signature and sealing. If the applicants lawyers prepared the decree which gave wrong dates, they had
themselves to blame, especially so if they left it to the court to do so. That the appellant failed to
prove that at any time he applied for a copy of the decree (not even the judgment an proceedings), he
had no proof of date of receipt of the decree. He ought to have filed his appeal latest 29 th November,
1986 i.e. thirty days after the date of judgment instead he filed 3 rd December 1986. It was thus filed
out of time. He did not apply for let alone, obtain leave to file out of time. Appeal was struck out as
incompetent.
Application for extension of time to Appeal

Section 96 CPA provides for enlargement of time. That where any period is fixed or granted by the
court for the doing of any act prescribed or allowed by the Act, the court may, in its discretion, from
time to time, enlarge that period, even though the period originally fixed or granted may have
expired.
In the case of Evaristo Mugabi vs. Attorney General [1992-1993] HCB 169 held that under section
80(1) of the Civil procedure Act, the appellate court may for good cause admit an appeal although a
period of limitation prescribed by the section may have elapsed and although the court has discretion,
it must be exercised judicially and for sufficient cause. The application for extension of time has to be
made prompt and good cause must be shown for the entire period of delay and that the delay was not
by dilatory conduct on part of the applicant. Under R.4 of the Supreme Court rules the court may for
sufficient cause extend time limited by the rules within which to do any act authorized by the rules if
the applicant acted diligent and spared no effort in trying to lodge the appeal.
In the case of Florence Nabatanzi vs. Naome Binsobedde SC C Application No. 6 of 1987 held that
the Court has wide powers to extend the period provided sufficient reason is shown. Sufficient reason
depends on the circumstances of each case and must relate to inability or failure to take a particular
step in time. It is settled law that the fact an appeal appears likely to succeed cannot itself amount to
sufficient reasons.
The procedure of Appeal

The procedure is provided in O.43 CPR. Appeals to the High court from the decision of the Chief
magistrate and magistrate Grade 1 are commenced by a memorandum of appeal filed by the
appellant. The form of memorandum provided for in O.43 r 1 CPR provides that every appeal to the
High Court shall be preferred in the form of a memorandum signed by the appellant or his or her
advocate and presented to the court or to such officer as it shall appoint for that purpose. Sub rule 2
provides that the memorandum shall set forth, concisely and under distinct heads, the grounds of
objection to the decree appealed from without any argument or narrative; and the grounds shall be
numbered consecutively.
Under O.43 r 2 grounds which may be taken in appeal are provided and its provided that the appellant
shall not, except by leave of the court, urge, or be heard in support of any ground of objection not set
forth in the memorandum of appeal; but the High Court in deciding the appeal shall not be confined
to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court
under the rule; except that the High Court shall not rest its decision on any other ground unless the
party who may be affected by the decision has had a sufficient opportunity of contesting the case on
that ground.
O.43 r 8 the register of appeal is provided for, that where a memorandum of appeal is lodged, the
High Court then shall cause to be endorsed on it the date of presentation and the appeal shall be
entered in a book to be kept for that purpose, to be called the register of appeals.
After High Court has received a memorandum, it proceeds under rule 10 and sends notice of the
appeal to the court from whose decree the appeal is preferred and the court receiving the notice shall
send with all practicable dispatch all material papers in the suit or such papers as may be specially
called for by the High Court.
In the case of William Kisembo&Anor vs. KiizaRwakaikara HC Civil Appeal No. 07/2013 the
respondent’s contention was that the appeal should be dismissed because the essential steps were not
taken as required by law. Counsel for the respondent faulted the appellants for neither serving the
record of appeal nor extracting the order that is appealed against. It was argued for the respondent that
the appellants ought to have filed the record of appeal and served it onto the respondent to enable the
Honourable Court determine the appeal. Justice Hellen Obura held Order 43 of the Civil Procedure
Rules which governs appeals to the Court an appellant is not required to file a record of appeal as
contended by the respondents. That Order 43 rule 10 (2) puts the responsibility of giving notice of
appeal with a view of calling for the records from the trial court on to the High Court. There is no
mention of the appellant’s role beyond filing the Memorandum of Appeal. The appellants filed a
Memorandum of Appeal in the High Court on the 13 th May 2013 and on the 3rd of July 2016 the
Deputy Registrar of the high Court, in compliance with rule 10(2) wrote to the Chief Magistrate of
Mengo Chief Magistrate’s Court requesting that the case file be forwarded to the high Court for easy
management of the appeal. In response to that request the Chief Magistrate wrote to the Deputy
Registrar forwarding the case file on 20 th August 2013. Therefore the case file from the lower court is
already before the high Court and the records therein have been considered in determining the appeal.
Secondly, Court is alive to the previously strict view that required an appellant to extract a decree
before appealing. However, this is now done as a matter of prudence because the Court of Appeal in
the case of Standard Chartered Bank (U) Ltd vs Grand Hotel (U) Ltd [1999] KALR 577held that it
is no longer a requirement to accompany the appeal with a formal order or extracted decree. That the
High Court echoed the same legal proposition in the case of Patrick Nkoba vs Rwenzori Highlands
Tea Co. & Another, High Court Civil Appeal No. 5 of 1999 reported in [1999] KALR 762.
O.43 r 11 the notice of the day fixed for hearing of the appeal shall be served on the respondent or on
his or her advocate in the manner provided for the service on a defendant of a summons to enter
appearance; and all the provisions applicable to that summons, and to proceedings with reference to
the service of the summons, shall apply to the service of the notice. Rule 12 the notice to the
respondent shall declare that if he or she does not appear in the High Court on the day so fixed, the
appeal may be heard ex parte.
O.43 r 13 the applicant has right to begin. On the day fixed, or on any other day to which the hearing
maybe adjourned, the appellant shall be heard in support of the appeal. The court shall then, if it does
not dismiss the appeal at once, hear the respondent against the appeal, and in that case the appellant
shall be entitled to reply.
O.43 r 14 where on the day fixed, or on any other day to which the hearing may be adjourned, the
appellant does not appear when the appeal is called on for hearing, the court may make an order that
the appeal be dismissed. Where the appellant appears, and the respondent does not appear, the appeal
may be heard ex parte.
O.43 r 19 provides for remand of cases by High Court.
O.43 r 20 provides that where evidence on record sufficient High Court may determine case finally.
O.43 r 21 provides for power to order new trial.
O.43 r 22 production of additional evidence in High Court. It provides that parties to an appeal shall
not be entitled to produce additional evidence, whether oral or documentary, in the High Court. In the
case of UGMA Engineering Corp. vs. Lugazi Town Council HCCA No. 33 of 1990 held that since
this was an appeal, fresh evidence would not be allowed and therefore the production of maps to
prove whether the appellant company was within a ratable area of Lugazi Town Council would not be
allowed.
There however exceptions in the Order, if—

(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to
have been admitted; or
(b) the High Court requires any document to be produced of any witness to be examined to enable it
to pronounce judgment, or for any other substantial cause, the High Court may allow the evidence or
document to be produced, or witness to be examined. Wherever additional evidence is allowed to be
produced by the High Court, the court shall record the reason for its admission.
In the case of Dharansy Morarji and Sons Ltd vs. S.N. Kara SCC Application No. 27 /1996 held
that there must be sufficient reason to justify reception of additional evidence. Whether or not to take
additional evidence is a matter entirely within the discretion of the appellate Court. It is very rare that
an appellate Court allows an appellant to adduce additional evidence in that court and never unless
there are exceptional grounds.
In the case of Alice J. Namisango vs. Galiwango [1986] HCB 37 Odoki J held that the busuulu and
envujjo tickets were wrongly produced as additional evidence since no exceptional circumstances
were proved to justifying the court to receive fresh evidence. Except for fraud or mistake, the general
rule is that an appellate court will not admit fresh evidence unless it was not available to the party
seeking to use it at the trial or that reasonable diligence would not have made it available.
In the case of American Express International Banking Corp vs. Atulkumar B. Patel [1987] HCB
34 held that the principles upon which additional evidence could be granted cited in all these
authorities were crystal clear and could not be bent to meet a situation in any given case unless it was
shown that such evidence was not available at the time of trial. Secondly it should be shown that there
was due diligence in obtaining it and thirdly that evidence would have an important influence on the
outcome of the case if produced. That the applicant has not shown diligence in obtaining facts or
evidence which was available at the time in regard to his case.
O.43 r 23 provides for the mode of taking additional evidence. It provides that wherever additional
evidence is allowed to be produced, the High Court may either take the evidence or direct the court
from whose decree the appeal is preferred or any other magistrate’s court to take the evidence and to
send it when taken to the High Court.
O.43 r 24 provides for points to be defined and recorded. It provides that where additional evidence is
directed or allowed to be taken the High Court shall specify the points to which the evidence is to be
confined and record on its proceedings the points so specified.
O.43 r 26 provides for what judgment may direct. That the judgment may be for confirming, varying
or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to
the form which the decree in appeal shall take, or as to the order to be made inappeal, the High Court
may pass a decree or make an order accordingly.
Procedure of Appeal from decision of the High Court Registrar to the High Court Judge.
O.50 r 8 CPR provides that any person aggrieved by any order of a registrar may appeal from the
order to the High Court. The appeal shall be by motion on notice.
Time for Appealing

Time for appeal begins to run when judgment or ruling is delivered. Section 79 (b) CPA provides that
except as otherwise specifically provided in any other law, every appeal shall be within seven days of
the date of the order of a registrar, as the case may be, appealed against
Procedure of Appeal from decision of the High Court to Court of Appeal.
An appeal may lie from the decree or orders of the High Court to the Court of Appeal subject to the
law. An appeal lies as of right from the decree of the high court exercising original jurisdiction or
appellate jurisdiction as a first appellate court.
Appeals from orders of the high court exercising original jurisdiction may be as of right or subject to
leave see s.66, s.76, O.44 r1 and O.6 r 30(2). Where an order is not covered by the aforementioned
provisions and no automatic right is created under any other rule, the order is appealable with leave
under O.44 r 2 CPR. See Dr. Sheikh Mohammed Ahmed Kisuule vs. Greenland Bank in liquidation
SCCA No. 11/2010
Leave of Court
An appeal under the Civil Procedure Rules shall not lie from any other order save with leave of the
court making the order or of the Court to which an appeal would lie, if leave were given.-O.44 r 2
CPR. Appeals lie of right from orders under section 76 and O.44 r 1.
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.
In the case of Sangobay Estates Ltd vs. Dresdner Bank A.G [1971] E.A 17 Spray V.P stated ‘As I
understand it, 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’
In the case of Dr. Sheikh Mohammed Ahmed Kisuule vs. Greenland Bank in liquidation SCCA No.
11/2010at p.10-11an applicant has to satisfy court that the intended appeal involves a substantial
question of law or that the decision against which he/she intends to appeal appears to have caused a
miscarriage of justice.
Procedure of an application for leave

Application for leave to be made to the court that made the order first. R.42 Court of Appeal rules.
An application for leave to appeal shall be by notice on motion-O.44 r 4 CPR.
However the party applying for leave has in the first instance the choice, whether to apply informally
at the time of delivery of judgment or order or making a formal application later. An application for
leave can be made informal at the time of making the ruling.
R.40(2)(a) of the Court of Appeal rules, an application for leave shall be made informally at the time
when the decision against which it is desired to appeal is given.
R.40(2)(b) if the high court refuses to grant the leave or where an appeal lies with leave of court, an
application for the leave shall be lodged by notice of motion within 14 days after the decision of the
high court refusing leave and the decision of the court of appeal is final.
In the case of G.M Combined (U) Ltd vs. A.K Detergents (U) Ltd SCCA No. 23/1994 Supreme Court
stated that it is plain that Rule 39(a) supreme court rules and Order 40 rule l (4) CPR are substantially
in conflict, but the conflict was resolved as long ago as 1971 by the Court of Appeal for East Africa
in SANGO BAY Ltd vs. Dresdner Bank (1971) E.A. 17 where at p.20 Spry V.P made the following
observations:-.
“The first ground on which this application is based is that the Judge erred in rejecting the informal
application for leave to appeal made immediately after delivery of the main order. He based his
decision onO.40 rule 1(4),but rule 23 of the East African Court of Appeal Rules, 1954, expressly
allows informal
application. Formerly, this position was that the Court of Appeal Rules had effect as if contained in
the Order in Council which empowered them and therefore prevailed, as regards procedural matters,
over municipal legislation.
Now, as regards Uganda, their authority depends on section 43of the Judicature Act, I967, and it
seems to me that having been expressly preserved by an Act later in date than the Civil Procedure Act
and Rules, they must continue to prevail. I think therefore that the Judge was wrong to treat the
informal application as incompetent.”
The Supreme Court held that opinion applies with the same force today as it did in 1971. It has never
been doubted and proposed to follow it. It is quite clearly on all fours with the present case and there
is no ground distinguishing it from the alleged nature of the application. The Supreme Court further
stated;
‘The party applying for lave has in the first instance the choice, whether to apply informally at the
time of delivery of judgment or order, or making a formal application letter. What is involved in that
choice? If the party has instructions to appeal, he may without incurring any costs apply informally
at once. Indeed this court has had occasion to encourage advocates to be prepared in advance of
delivery of judgment or ruling with instructions whether or not to appeal. If instructions are received,
no further waste of time and money will occur. If however the question is not clear, then he may apply
later by motion on notice. Initially therefore, the choice of procedure is open to the party who wishes
to appeal. Nor is it open to the respondent to insist on formal application. His duty is to resist leave
being granted upon merit of the decision.’’ That it was obvious that at least the amount of security
merited serious consideration. That being so, it was the duty of the learned Judge to inquire what
grounds there were on which the appeal would be taken. If, the grounds were insubstantial, the
learned Judge might refuse leave, or call for a formal application. However, in the circumstances
which faced the Judge in the present case, the issues were simple and there was no need to call for a
formal application. Indeed had the learned Judge not misdirected himself, the learned Judge would
have been able to deal with the application at once and his misdirection entitles this Court to
reconsider the manner in which his discretion was exercised. That the rule is that if the High Court
has refused leave to appeal on a proper application, or on what the High Court considers a doubtful
application, but one which should have been entertained, it is taken that the High Court has refused
leave, and that an application may be made to the Appellate Court. That is precisely the point made in
the Sango Bay Ltd where the application ought to have been heard.
The effect of failure to obtain leave of court where it is required will result in striking out of appeal
and the appeal is incompetent once leave is required and is not obtained. See R. 82 of the Court of
Appeal rules.
In the case of Kampala City Council vs. National Pharmacy Ltd [1979] HCB215 the Court of
Appeal held that rule 80 of the Court of Appeal rules empowers court to strike out the notice of
appeal, among other things some essential step in the proceedings has not been taken.
Time for Appealing

The time for appeal begins to run when judgment or ruling is delivered. R. 76(2) a notice of Appeal
must be filed within 14 days after the date of the decision which is desired to appeal. Appeals with
leave-notice of appeal must be filed and served within 14 days from the date of granting of leave.
Under R. 83 an appeal shall be instituted in the court by lodging in the registry, within 60 days after
the date when the notice of appeal was lodged a memorandum of appeal, record of appeal, prescribed
fees and security for costs of the appeal.
R. 83(2) where an application for a copy of the proceedings has been made to the High Court the
period for the preparation and delivery of the proceedings shall be excluded in computation of the
sixty days.
In the case of Alcon International vs. Kasirye Byaruhanga & CO. Misc. Appl. 438/95 the Court
observed that appeal describes a procedure started by filing a notice of appeal that once a notice is
filed then procedure of appeal is put in place.
In the case of Godfrey Tuwangye Kazzora vs. Georgina Kitarikwenda [1992-1993] HCB 145 held as
follows;
i) Time for lodgment of an appeal does not begins to run against the intending appellant until
that party receives a copy of the proceedings against which he intends to appeal. In the
instant case the application for leave to appeal out of time was filed in court before
proceedings of the lower court had been typed and secured by the appellant or his lawyer.
Therefore by the time the application to appeal out of time, which was subsequently struck
out, was filed, time had not started to run against the appellant. The fact that the
application for leave to appeal out of time was struck out, would not prevent a party whose
application was struck out from filing his appeal after he secured a copy of the court
record.
ii) Although some authorities have suggested that the appellant should not be permitted to
appeal after 7 years, the interest of justice would demand that the dispute should be
decided on merit especially when it is between a mother and a son, the court may exercise
its discretion to grant leave to appeal out of time when delay is caused by the mistake of
the appellant advocate.
In the case of Gaba Beach Hotel vs Cairo International Bank Ltd CA No.34/2003 the issue was
whether noncompliance with the time limit for filing and serving a notice of appeal is curable under
Art.126(2)(e) of the constitution. It was held that rules relating to institutions of appeals in this court
aren’t to be regarded as mere technicalities under art. 126(2)(e) of the constitution. They go to the
root of substantive justice and the doctrine of fair trial. They are intended to protect both parties from
abuse of court process to the prejudice of the proper administration of justice.
Application for extension of time
S.96 CPA the court has discretion to enlarge time. Under R. 5 provides for extension of time limited
by the rules or by any decision of court or of the High court for doing of any act authorized or
required by the rules, whether before or after expiration if time for sufficient reasons. Under the
Practice Direction No. 1 of 2004 Court of Appeal (Judicial Powers of Registrars) practice direction,
an application for extension of time is before the registrar.
In the case of Busasi &Anor vs. Kareba & Anor [1979] HCB 129 the Court of appeal held that;
i) the power to extend time within which an appeal is made is governed by rule 4 Court of
Appeal rules. The power is discretionary and only exercisable for sufficient reason.
ii) the burden is on the applicant to satisfy court that for ‘sufficient reason’’ it was not
possible for the appeal to be lodged in time.
iii) It is only after ‘sufficient reason’ has been advanced that a court considers, before
exercising its discretion whether or not to grant extension, the question of prejudice or the
possibility of success and such other factors.
In the case of Arconsult Architects vs. Bauman (U) Ltd held that section 37(1)(a) J.A gives the
High Court power where any appeal lies from its judgment to extend the time for giving notice of
intention to appeal as long as the applicant gives sufficient reasons for failure to file his notice in
time and dishonest pocketing of court fees by the clerk resulting in failure to file the notice in
time was sufficient ground to allow such an extension.
In the case of Evaristo Mugabo vs. A.G [1992-1993] HCB 169 held that under section 80(1)
CPA, the appellate court may for good cause admit an appeal although a period of limitation
prescribed by the section may have elapsed and although the court has a discretion, it must be
exercised judicially and for sufficient cause. The application for extension of time has to be made
promptly and good cause must be shown for the entire period of delay and that delay was not by
dilatory conduct on the part of the applicant. Under r.4 of the Supreme Court rules the court may
for sufficient cause extend time limited by the rules within which to do any authorized act by the
rules if the applicant acted diligent and spared no effort in trying to lodge the appeal.
Notice of Appeal
A notice of Appeal is the first document that must be filed in an appeal. An appeal is brought by way
of notice of appeal-r.76.In the case of Alcon International vs. Kasirye Byaruhanga & CO. Misc.
Appl. 438/95 the Court observed that appeal describes a procedure started by filing a notice of appeal
that once a notice is filed then procedure of appeal is put in place.
Every notice of appeal shall state whether it is intended to appeal against the whole or part only of the
decision, and where it is intended to appeal against a part only of the decision, it shall specify the part
complained of, state the address for service of the appellant and state the name and address of all the
persons intended to be served with copies of the notices-r.75 (3)
In the case of Mugo & Anor vs. Wanjiru & Anor [1970] EA 481 held that the notice of appeal was
valid and effective notwithstanding the death of the defendant. The notice of appeal could be validly
served on the advocate of the deceased defendant.
In the case of Francis Mansio Micah vs. Nuwa Walakira [1992-1993] HCB 88 held that R.74(3) of
the Court of Appeal rules provides that the address for service upon the respondent should be stated
upon the notice of appeal. But rule 76 provides that the notice shall be served upon the respondent
within 7 days by the appellant. After service of the notice, the respondent provides his proper address
for service under R.78. The provision for the address for the respondent in rule 74(3) is therefore
largely a matter of good administration rather than fundamental necessity.
R. 78 (1) An intended appellant shall, before or within seven days after lodging notice of appeal,
serve copies of it on all persons directly affected by the appeal; but the court may, on application,
which may be made ex parte, direct that service need not be effected on any person who took no part
in the proceedings in the High Court.
In the case of Francis Mika vs. Nuwa Walakira SCCA No. 24/94 Court found that the intending
appellant must serve copies of the notice of appeal on all persons directly affected by the appeal.
R. 80 every person on whom a notice of appeal is served shall (a) within fourteen days after service
on him or her of the notice of appeal in the appropriate registry, serve on the intended appellant notice
of a full and sufficient address for service; and (b) within a further fourteen days, serve a copy of the
notice of address for service on every other person named
In the case of Noble Builders (U) Ltd vs. Sietco SCCA No. 31/1995 Order JSC held that where a
person fails to file a notice of full and sufficient address of service that person is not entitled to be
served with a memorandum and record of appeal. This is a mandatory requirement and must be in a
prescribed form.
R.82 a person on whom a notice of appeal has been served may at any time, either before or after the
institution of the appeal, apply to the court to strike out the notice or the appeal, as the case may be,
on the ground that no appeal lies or that some essential step in the proceedings has not been taken or
has not been taken within the prescribed time.
In the case of Afrique Co-op Society vs. URC (2002) 1 EA 1 the application to strike out a notice of
appeal was grounded on the fact that no application should lay against a consent judgment. Further
application to strike out notice of application was grounded on fact that notice of appeal had not been
served within 7 days. On this point court found that under r.77 of Court of appeal rules provides that
an intended appellant must serve copies of notice of appeal on all persons directly affected by the
appeal within 7 days of lodging of the notice. Court found that service of notice on litigant is an
essential requirement of an appeal and if it is not done within the prescribed period the appeal is
rendered incompetent unless leave of court to serve out of time is obtained. In this case it wasn’t done
and the appeal was struck out. In the case of Wanume David Kitamirike vs Uganda Revenue
Authority Civil Appl No. 138/2010 CA the application, brought under Rules 43, 82 and 83 of the
Judicature (Court of Appeal Rules) Directions, seeks 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 the court the record and Memorandum of Appeal out of the
prescribed time, thus failing to take an essential step in the Appeal proceeding. Court held that under
Rule 83(1) of the Rules of Court, an appeal is instituted in this Court, by lodging in the registry,
within sixty days after the date when the notice of appeal was lodged, a memorandum, the record of
appeal, the prescribed fees and security for costs. That
Rule 83 (2) provides that where an application for a copy of the proceedings in the High Court has
been made within thirty days after the date of the decision against which it is desired to appeal, there
shall, in computing the time within which the appeal is to be instituted, be excluded such time as may
be certified by the Registrar of the High Court as having been required for the preparation and
delivery to the appellant of that copy.
The copy of the application must be in writing and must be served upon the respondent and the
appellant must retain proof of that service.
That the provisions of Rule 83(2) are mandatory. See: John Matsiko vs Banyankole Kweterana Co.
(U) Ltd: Court of Appeal Civil Application No.43 of 1998; and also:
Court of Appeal Civil application No.84 of 2001: Construction Engineers & Builders Limited vs
The Attorney General.
This Court has also further held in Dr. S.B. Kinyatta& Another vs Suburamania Rajha Gopalan&
Another: Civil Application No.1000 of 2000, that although, in some instances, Rule 83(2) may be
unfair to one who has already got Judgment, however,
“…………..as long as the intending appellant has requested for the record of proceedings from the
High Court, and served it on the respondent, he is not required to do anything more until the
Registrar of the High Court has finished compilation of the record of proceedings”.
The consequences or default in instituting an appeal within 60 days are provided in Rule 84. If a party
who has lodged a notice of appeal fails to institute an appeal within the prescribed time (a) he or she
shall be taken to have withdrawn his or her notice of appeal and shall, unless the court otherwise
orders, be liable to pay the costs arising from it of any persons on whom the notice of appeal was
served; and (b) any person on whom the notice of appeal was served shall be entitled to give notice of
appeal notwithstanding that the prescribed time has expired, if he or she does so within fourteen days
after the date by which the party who lodged the previous notice of appeal should have instituted his
or her appeal.
In the case of Hannington Waswa & Anor vs. Maria Ochola & Ors SC Misc. Appln. No. 12 of 1998
held that under r.80(1) of the rules of this Court, the appeal should have been filed within 60 days
from the date of receipt of the proceedings. A person on whom a notice of appeal has been served is
entitled under rule 80 of the same rules to apply to court to strike off the notice of appeal on the
ground that some essential step in the proceedings has not been taken within the prescribed period.
The failure to file the appeal within the prescribed 60 days from the date of receipt of the record of
proceedings was sufficient ground to have the notice of appeal struck off.
Memorandum of Appeal
Institution of appeals is provided in R.83 of the Court of appeal rules. It provides that subject to rule
113 of these Rules, an appeal shall be instituted in the court by lodging in the registry, within sixty
days after the date when the notice of appeal was lodged (a) a memorandum of appeal, in six copies,
or as the registrar shall direct; (b) the record of appeal, in six copies, or as the registrar shall direct; (c)
the prescribed fee; and (d) security for the costs of the appeal.
R.83 (2) an application for a copy of the proceedings in the High Court must be made within thirty
days after the date of the decision against which it is desired to appeal. That there shall, in computing
the time within which the appeal is to be instituted, be excluded such time as may be certified by the
registrar of the High Court as having been required for the preparation and delivery to the appellant of
that copy.
The intending appellant applies to the High Court by a formal letter addressed to the registrar for
typed record of proceedings. It is to be served on the respondent and there must be evidence of such
service. In Horizon Coaches case the justices recommended that a prudent advocate should swear an
affidavit of service.
In the case of National Housing and Construction Co. Ltd vs. Salome T.B Kyomukama Civil
Application No. 133/2009 held that a party / respondent who is not served with a letter requesting for
typed proceedings may apply under Rule 82 to strike out the appeal if the memorandum and record of
appeal are not filed within 60 days’ time limit.
In the case of Steven Mabosi vs. URA SCCA No. 16 of 1995, an application was brought under
R.42,80 and 82 of the Supreme Court rules seeking to strike out a notice of appeal by the respondent
on the ground that the respondent had not instituted the appeal within 60 days from the date of filing
the notice of appeal as required by rule 81(2) supreme court rules and the respondent replied that he
had replied with R.81 Supreme court rules where the proviso thereof provide that as one as the
intending appellant applies within 30 day the copy of proceedings of the High Court the time taken by
the High court to prepare and take proceedings to the intending appellant shall be excluded from the
sixty days mentioned in the rule. Respondent further replied that his notice of appeal…that it is
intended to formulate his notice of appeal upon receipt of notice of appeal that this amounted an
application for record. Applicant contended that there was no application on record. Court found that
rule 81 didn’t specify for which an application for record of proceedings is made as long as it is to the
registrar within 30 days from the date of the proceedings. Court found that a notice of appeal in its
form amounted to record of proceedings and appeal was not out of time.
In the case of Mustapha Begani vs. Obolo Ochora Civil Application No. 4 of 1997, was an
application to strike out the respondent’s notice of appeal on ground that the respondent had not taken
any step to file the record of appeal within the prescribed time or at all. Court found that rule 82
renders a notice of appeal invalid where the record of appeal hasn’t been filed in the prescribed time
of 60 days. The rules therein empower the respondent to move court to strike out the notice of appeal.
Rule 86 provides for the contents of memorandum of appeal. That the memorandum of appeal shall
set forth concisely and under distinct heads, without argument or narrative, the grounds of objection
to the decision appealed against, specifying the points which are alleged to have been wrongfully
decided, and the nature of the order which it is proposed to ask the court to make. (2) The grounds of
objection shall be numbered consecutively.
Record of Appeal
Rule 87 provides for the record of appeal. Contents set therein and for purposes of appeal from the
High Court, in its original jurisdiction, the record of appeal shall, contain copies of the following
documents—
a) an index of all the documents in the record with the numbers of the pages at which they
appear;
b) a statement showing the address for service of the appellant and the address for service
furnished by the respondent and, as regards any respondent who has not furnished an address
for service, then as required by rule 78 of these Rules, his or her last known address and proof
of service on him or her of the notice of appeal;
c) the pleadings; e.g plaint, written statement of defense, notice of motion
d) the trial judge’s notes of the hearing;
e) the transcript of any shorthand notes taken or any other notes howsoever recorded at the trial;
f) the affidavits read and all documents put in evidence at the hearing, or if those documents are
not in the English language, certified translations of them;
g) the judgment or reasoned order;
h) the order, if any, giving leave to appeal;
i) the notice of appeal; and
j) any other documents necessary for the proper determination of the appeal, including any
interlocutory proceedings which maybe directly relevant.
For the purpose of an appeal from the High Court in its appellate jurisdiction, the record of appeal
shall contain documents relating to the proceedings in the trial court corresponding as nearly as may
be to those set out in sub rule (1) of this rule and shall contain also the following documents relating
the appeal to the first appellate court (a) the order, if any, giving the leave to appeal; (b) the
memorandum of appeal; (c) the record of proceedings; (d) the judgment or order; the notice of appeal;
and (f) in the case of a third appeal to the court, the corresponding documents in relation to the second
appeal to the High Court, and the certificate of the High Court that a point of law of general public
importance is involved-R.87 (3)
R. 88 the memorandum and record of appeal must be served to the respondent within 7 days by the
appellant.
R. 90 any defect in record of appeal may be cured by either respondent or appellant filing a
supplementary record of appeal to complement the record of appeal.
In the case of Barclays Bank (U) Ltd vs. Eddy Rodrigues CACA No.5 of 1987 held that a
supplementary record is a record of any further documents or additional parts of document which
may be required for determination of the appeal. A supplementary record merely supplements a
defective or insufficient original record of appeal and is not itself a basic document required for the
original appeal.
In the case of Bohenex Intra (U) Ltd vs. Jamal and Sons (U) Ltd & 2 Ors SCCA No. 5 of 1992 held
that a supplementary record should not contain one of the basic documents required by rule 85(1) of
the supreme court rules. The reasoned judgment or order is just as basic, or fundamental to the appeal
as the formal decree or order without appeal. Consequently it is a document which must be included
in the original record, and if it is not, the appellant has failed to comply with rules 85(1) rendering the
appeal incompetent. If then the reasoned judgment or order is filled under a supplementary record of
appeal it constitutes a refiling of the record of the appeal. In the present case that would mean that the
appeal is out of time and therefore once again incompetent.
R. 91 provides for cross appeal. There is time when the victor in proceedings is given the opportunity
to cross appeal that the decision of the High court ought to be varied or reversed. He has to give
notice to that effect that he intends to cross appeal. He gives notice which contains the grounds for his
or her intention and the order which he asks the court to make.
R. 93 A respondent who intends to cross-appeal or to contend that the decision of the High Court
should be affirmed on grounds other than those relied on by that court shall, before or within seven
days after lodging his or her notice of cross-appeal or notice of grounds for affirming the decision, as
the case may be, serve a copy of it on all other persons directly affected by the cross-appeal or by the
appeal, as the case may be.
R. 94 an appellant may at any time after instituting his or her own appeal in the court and before the
appeal is called on for hearing, lodge in the registry notice in writing that he or she does not intend
further to prosecute the appeal. The appellant shall, before or within seven days after lodging the
notice of withdrawal, serve copies of it on each respondent who has complied with rule 80 of these
Rules. If all the parties to the appeal consent to the withdrawal of the appeal, the appellant may lodge
in the appropriate registry the document or documents signifying the consent of the parties; and the
appeal shall then be struck out of the list of pending appeals. If all the parties to the appeal do not
consent to the withdrawal of the appeal, the appeal shall stand dismissed with costs, except as against
any party who has consented, unless the court, on the application of the appellant, otherwise orders.
Rule 98 provides for presentation of arguments in writing. That any party to an appeal who does not
intend to appear in person or by advocate at the hearing of the appeal may lodge in the registry a
statement in writing of his or her arguments in support of or in opposition to the appeal or the cross-
appeal, if any, as the case may be, and shall, before or within seven days after lodging it, serve a copy
of it on the other party or on each party appearing in person or separately represented. Every
statement under the rule shall be lodged (a) by an appellant, within fourteen days after lodging his or
her memorandum of appeal; (b) by a respondent, within thirty days after service on him or her of the
memorandum and record of appeal. No party who has lodged a statement under the rule shall, except
with leave of the court, address the court at the hearing of the appeal.
The Hearing
There is attendance at the scheduling conference and preparation of skeleton arguments plus filing the
same. This is in accordance with Practice Direction No2 of 2006
R.99 the hearing of appeal is commenced by registrar giving all parties to an appeal not less than
fourteen days’ notice of the date fixed for hearing of an appeal. It shall not be necessary to give the
notice to any party with whose consent the date for the hearing was fixed.
R. 100 provides for appearance at the hearing and the procedure for non-appearance. If on any day
fixed for the hearing of an appeal in the court the appellant does not appear, the appeal may be
dismissed and any cross-appeal may proceed, unless the court sees fit to adjourn the hearing.
Where an appeal has been dismissed or any cross-appeal heard has been allowed, the appellant may
apply to the court to restore the appeal for hearing or to rehear the cross appeal, if he or she can show
that he or she was prevented by any sufficient cause from appearing when the appeal was called on
for hearing. If the appellant appears but the respondent fails to appear, the appeal shall proceed in the
absence of the respondent and any cross-appeal by the respondent may be dismissed, unless the court
sees fit to adjourn the hearing. Where an appeal has been allowed or cross-appeal dismissed in the
absence of the respondent, he or she may apply to the court to rehear the appeal or to restore the
cross-appeal for hearing, if he or she can show that he or she was prevented by any sufficient cause
from appearing when the appeal was called for hearing. An application for restoration shall be made
within thirty days after the decision of the court, or in the case of a party who should have been
served with notice of the hearing but was not so served, within thirty days after his or her hearing of
that decision.
R. 102 provides for arguments at hearing. That at the hearing of an appeal in the court no party shall,
without the leave of the court, argue that the decision of the High Court should be reversed or varied
except on a ground specified in the memorandum of appeal or in a notice of cross-appeal, or support
the decision of the High Court on any ground not relied on by that court or specified in a notice given
under rule 93 of these Rules.
In the case of Mora v John Malobo (1979) HCB 54 Court found that an appellant cannot argue or be
heard except by leave of court in support of any ground of appeal not set out in the appeal.
R.30 provides for the power to reappraise evidence and take additional evidence. That on any appeal
from a decision of the High Court acting in the exercise of its original jurisdiction the court may
reappraise the evidence and draw inferences of fact and in its discretion, for sufficient reason, take
additional evidence or direct that additional evidence be taken by the trial court or by a commissioner.
When additional evidence is taken, it may be oral or by affidavit and the court may allow the cross
examination of any deponent.
In the case of Dharansy Morarji and Sons Ltd vs. S.N. Kara SCC APPLICATION No. 27/1996 held
that there must be sufficient reason to justify reception of additional evidence. Whether or not to take
additional evidence is a matter entirely within the jurisdiction of the appellate court. It is very rarely
that an appellate court allows an appellant to adduce additional evidence in that court and never
unless there are exceptional grounds (see Taylor vs. Taylor (1944) II E.A.C.A 46). That the appellant
has satisfied the conditions which justify reception of additional evidence. The evidence could not
have been obtained with reasonable diligence for use at the trial since the respondents probate had not
been revoked. Secondly the evidence of revocation of probate, if given, would probably have an
important influence on the results of appeal. Thirdly the evidence of revocation of the grant appears
to be credible.
Court will make judgment.
This procedure of appeal applicable to the Court of Appeal applies with modification to the
Supreme Court and its set out in the Judicature (Supreme Court Rules) Direction SI 13-11
TOPIC IX.
Constitutional litigation.
Art. 131 of the Constitution provide that any question as to the interpretation of the Constitution shall
be determined by the Court of Appeal sitting as the constitutional court.
Every court in Uganda is vested with jurisdiction to construe, apply and enforce provisions of the
Constitution in relation to any dispute before it. Whoever disagrees with decision of such court in
relation to the interpretation of the Constitution may petition the Constitutional Court. For the
Constitutional court to have jurisdiction, the petition must show on the face of it that interpretation of
the constitution is required in accordance with art. 137(3) of the Constitution.
Art. 137(5) provides that where any question as to the interpretation of this Constitution arises in any
proceedings in a court of law other than a field court martial, the court (a) may, if it is of the opinion
that the question involves a substantial question of law; and (b) shall, if any party to the proceedings
requests it to do so, refer the question to the constitutional court for decision in accordance with
clause (1) of this article.
Art. 137 (3) A person who alleges that (a) an Act of Parliament or any other law or anything in or
done under the authority of any law; or (b) any act or omission by any person or authority, is
inconsistent with or in contravention of a provision of this Constitution, may petition the
constitutional court for a declaration to that effect, and for redress where appropriate.
Where a reference to the court regarding any question as to the interpretation of the constitution is to
be made, the original court shall submit the reference stating the specific question or issues to be
answered or to be resolved. R.18 (1) the Constitutional Court (Petition and References) Rules SI 91
of 2005
In the case of Uganda Project Implementation and Management Centre vs. Uganda Revenue
Authority Constitutional Petition No. 18/07 (Reference) was a constitutional reference sent to the
constitutional court by the Tax Appeals Tribunal sent under the provisions of Art. 135(5) of the
Constitutional. The question for determination and implementation was ‘whether s.34c(3) of the VAT
Act Cap. 349 as amended by the Finance Act 2001 which requires a person before lodging an
application with the tribunal, pay the commissioner 30% of the tax in dispute contravenes Art. 21
which emphasizes equality of all persons before and under the law and Art. 126(2)(a) that requires
justice to be done to all irrespective of their social or economic status.
Court held that Chapter 4 of the Constitution deals with protection and promotion of fundamental and
other human rights and freedoms. That some of the rights and freedoms are absolute while others are
subject to some limitations and qualifications. The question is whether the impugned section imposes
limitation on the right to access to the petitioner and if so whether such limitation can be justified
under Art. 43 of the constitution. That the petitioner’s case is based on discrimination under Art. 21
and not Art. 28 which provides for access to court. There is no dispute that the impugned section
imposes a restriction on the tax payer’s right of accessing court to air whatever grievance he or she
has about the assessment of the tax authority but payment of tax is a duty of every citizen under the
constitution, see Art. 17. That the limitation imposed by the impugned section are not arbitrary,
unreasonable and demonstrably justified in a free democratic society. That the section does not
contravene any of the cited Articles of the constitution.
TOPIC X
THE LAW, PROCEDURE AND PRACTICE IN ELECTION PETITIONS.
Election Petition Rules
The trial by election petitions is governed by special Act and rules which must be construed strictly.
The practice and procedure in respect of a petition shall be regulated, as nearly as may be, in
accordance with the Civil procedure Act and rules made under that Act relating to trial of a suit in the
High court, with such modifications as the court may consider necessary in the interests of justice and
expedition of the proceedings.
R.15 of the Presidential Elections (Election Petition) Rules 2001 provides that subject to the
provisions of these Rules, the practice and procedure in respect of a petition shall be regulated, as
nearly as may be, in accordance with the Civil Procedure Act and the Rules made under that Act
relating to the trial of a suit in the High Court, with such modifications as the Court may consider
necessary in the interests of justice and expedition of the proceedings. See also R.17 of the
Parliamentary Elections (Election Petitions) Rules SI 141-2
These rules take precedence over the Civil Procedure Rules. Any special rules of procedure not
contained in these rules may have been or may be made by the High court shall, where they conflict
with these rule, prevail and be deemed to govern the procedure in the matter mentioned in the special
rules-O.49 r 4 CPR.
General Principles of Elections
The principles were laid down by the Chief Justice Odoki in his judgment in the Presidential
Election Petition No. 1 of 2001, Rtd Col Dr Kiiza Besigye v Yoweri Kaguta Museveni and Electoral
Commission. They are summarized as follows;
a) The election must be free and fair
b) The election must be by universal adult suffrage, which underpins the right to register and
vote
c) The election must be conducted in accordance with the law and procedure laid down by
parliament.
d) There must be transparency in the conduct of election
e) The result of the election must be based on the majority of the votes case.
Challenging a presidential Election.

Any aggrieved candidate may petition the Supreme Court and the petition shall be lodged in the
Supreme Court for an order that a candidate declared by the Electoral Commission elected as
President was not validly elected-Art. 104(1) of the Constitution and Section 59 Presidential
Elections Act.
Mode of Presentation of Election Petition

A presidential election petition must be presented to the Supreme Court and shall be lodged in the
registry within 10 days after the declaration of the election results-Art. 104(2) Constitution and
Section 59(2) Presidential Elections
R.4 of the Presidential Elections (Election Petitions) Rules 2001 requires the petition to state the
following;
a) the right of the petitioner to present the petition in accordance with section 58 of the Act;
b) the holding and result of the election together with a statement of the grounds relied upon to
sustain the prayer of the petition;
c) the address of the place where personal service can be effected on the respondent.
The only grounds to be specified in a petition for the annulment of an election are those specified in
subsection (6) of section 59 of the Act. They include-
(a) non-compliance with the provisions of this Act, if the court is satisfied that the election was not
conducted in accordance with the principles laid down in those provisions and that the non
compliance affected the result of the election in a substantial manner;
(b) that the candidate was at the time of his or her election not qualified or was disqualified for
election as President;
(c) that an offence under the Act was committed in connection with the election by the candidate
personally or with his or her knowledge and consent or approval.
Offences under the Act include;-Bribery-s.64, procuring prohibited persons to vote, s. 65, publication
of false information as to illness, death or withdrawal of candidate-s.66, obstruction of voters
s.67. Other offences include false statements concerning character of candidates-s.69,
misconduct at candidates’ meetings-s.70, failure by presiding officers to furnish election returns-
s.71, offences relating to voting-s.72, unauthorized voting or voting more than once-73, making
wrong returns of an election-74, personation-s.75, offence of undue influence-s.76, prohibition
of certain activities on polling day-s.77, defacement of notices and posters-s.78, obstruction of
election officers-s.79.
The petition shall be divided into paragraphs numbered consecutively, each of which shall, as nearly
as may be, confined to a distinct portion of the subject; and no costs shall be allowed for the drawing
or copying of any petition not substantially in compliance with this sub rule unless the Court
otherwise orders.
The petitioner or the advocate of the petitioner shall, at the time of presenting the petition (a) pay a
fee of twenty currency points; (b) make a deposit of fifty currency points as security for costs. Failure
to comply with this requirement the petition shall not be received by the Registrar-R.5.
Service of the Petition

A presidential petition must be served immediately on the respondent or each respondent and such
service shall be personal-R.5 & 6.
Answer of respondent to petition.

R.8 provides that if the respondent wishes to oppose the petition, the respondent shall, within three
days after the petition was served on him or her, file an answer to the petition. The respondent’s
answer shall be filed with the Registrar together with ten copies of it for use by the Court and for
service on the Attorney-General, the Commission and the other respondents, if any. The answer of
the respondent shall be accompanied by (a) an affidavit stating the facts upon which the respondent
relies in support of his or her answer; (b) a fee of five currency points.
The respondent shall, immediately upon filing the answer with the Registrar, serve a copy on the
petitioner or his or her advocate. Where the respondent requires further and better particulars of the
petition he or she shall apply for the particulars together with the answer and the petitioner shall,
subject to the directions of the Court, supply any particulars requested on or before the date set for
trial of the petition.
Evidence at trial
All the evidence at the trial, in favour of or against the petition shall be by way of affidavit read in
open court-R.14(1). However, with leave of the court. Any person swearing an affidavit, which is
before the court, may be cross examined by the opposite party and re-examined by the party on behalf
of whom the affidavit is sworn-R.14(2)
Burden and Standard of Proof

The election of a candidate as president shall only be annulled if proved to the satisfaction of court-
s.59 (6) Presidential Elections Act. The burden of proof lies on the petitioner to satisfy the court on
balance of probabilities that non compliance with the law and principles affected the result of the
election in a substantial manner. The standard of proof is higher than in an ordinary civil case and is
similar to standard of proof required to establish fraud, but it is not as high as in criminal cases where
proof beyond reasonable doubt is required.
Challenging a parliamentary or Local Government Election.
Form and Content of a Petition
A Petition questioning an election under the Parliamentary Elections Act and the Local Government
Act must be in a prescribed form.
Under R.4 of the Parliamentary Elections (Election Petitions) Rules, the form of a petition shall be as
specified in the Schedule to the Rules. Every petition shall state—
(a) the right of the petitioner to present the petition in accordance with section 90 of the Statute;
(b) the holding and result of the election together with a statement of the grounds relied upon to
sustain the prayer of the petition; and
(c) the address of the place where personal service can be effected on the respondent
The only grounds on which an election may be set aside are those set out in section 61 of the Statute.
They include-
(a) non-compliance with the provisions of the Act, if the court is satisfied that the election was not
conducted in accordance with the principles laid down in those provisions and that the non
compliance affected the result of the election in a substantial manner;
(b) that a person other than the won elected won the election.
In the case of Kasibante Moses vs. Katongole Singh Marwah & Electoral Commission No. 23/2011 the
petitioner was declared winner of the parliamentary seat and the 1 st respondent applied for recount of
votes under s.55(1) of the Parliamentary Elections Act and was declared winner after the recount. Court
held that the illegal recount conducted by the returning officer, kampala, at Mengo court did not affect the
declaration of the winner of the parliamentary elections. It did not do so because the recount was illegal.
That the winner of the parliamentary elections who was declared then remains the winner to date. His
declaration was not affected by the outcome of the illegal recount because it was incapable of doing so.
Court made a declaration that under the provisions of section 63(4)(b) of the PEA, that the petitioner was
validily elected member of parliament for Rubaga North constituency. An order made under the
provisions of s.63(6)(b)(1) PEA requiring the first respondent to vacate the seat for Rubaga North
constituency in parliament. An order requiring the first and second respondents each to pay 50% of the
costs of the petitioner in respect of the petition.
(c) that an illegal practice or any other offence under the Act was committed in connection with the
election by the candidate personally or with his or her knowledge or consent or approval or
(d) that the candidate was at the time of his or her election not qualified or was disqualified for
election as member of parliament;
In the case of Paul Mwiru v Hon. Igeme Nathan Nabeta Samson & 2 Others (ELECTION
PETITION APPEAL NO.6/11) [2011] UGCA 9 first appeal from the decision of the High Court
wherein the appellant’s petition seeking to annul the election of the first respondent as a Member of
Parliament for Jinja East Constituency was dismissed. On appeal Byamugisha JA held that Article
80 of the Constitution provides for qualifications and disqualifications of members of Parliament.
That it states that a person is qualified to be a member of Parliament if that person has completed a
minimum formal education of Advanced Level standard or its equivalent which shall be
established in a manner and at a time prescribed by Parliament by law.” That Parliament enacted
the Parliamentary Elections Act and provided in section 4 (1)thereof that “A person is qualified to
be a member of Parliament if that person has completed a minimum formal education of Advanced
Level standard or its equivalent.”
That the plain or literal meaning of section 4(1) (c ) of the above Act is that a person qualifies to be a
member of Parliament on proving to the satisfaction of the Electoral Commission to have completed
‘A’ level standard of education or its equivalent as the minimum level of education. In doing so the
candidate has to produce a certificate issued by the National Council for Higher Education in
consultation with UNEB. Such certificates which are presented for equating must be valid and
authentic. That equating of academic papers for purposes of elections is not a once life time exercise
unless the law is amended. That the evidence on record prove that there was no consultation between
UNEB and the NHHE on the totality of the 1 st respondent’s academic qualification before
the issuance of the certificate.
Illegal practices and offences under the Act include;-Bribery-s.68 The Parliamentary Elections
(Amendment) Act 2010 Section 68 of the principal Act amended by inserting at the end, the
following new subsections“(7) A candidate or an agent of a candidate shall not carryon fundraising or
giving of donations during the period of campaigning and a person who contravenes subsection (7)
commits an illegal practice. For purposes of this section fundraising shall not include the soliciting of
funds for candidates to organize for elections, procuring prohibited persons to vote, s. 69, publication
of false information as to illness, death or withdrawal of candidate-s.70, obstruction of voters s.71.
Other offences include false statements concerning character of candidates-s.73, misconduct at
candidates’ meetings-s.74, failure by presiding officers to furnish election returns-s.75, offences
relating to voting-s.76, unauthorized voting or voting more than once-77, making wrong returns of an
election-78, personation-s.79, offence of undue influence-s.80, prohibition of certain activities on
polling day-s.81, defacement of notices and posters-s.82, obstruction of election officers-s.83.
In the case of Bakaluba Peter Mukasa v Namboze Betty Bakireke (Election Petition Appeal
No.4 Of 2009) SC, the Appellant together with the Respondent and one Kawadwa Dawood Katamba
participated as contestants in the Mukono North Constituency Parliamentary Election held on 23 rd
February 2006. The Electoral Commission declared the Appellant the winner of the election with
22,680 votes. The respondent obtained 22,232 votes and Kawadwa Dawood got 627 votes. The
respondent was dissatisfied with the results and petitioned the High Court which annulled the election
because it found that the election had been marred by malpractices. The Appellant was dissatisfied
with that decision and appealed to the Court of Appeal. By a majority decision of two to one, the
Court of Appeal upheld the decision of the trial judge, hence the appeal to the Supreme Court.
The first ground was that “The learned majority Justices of Court of Appeal erred in law and fact
when they failed to make a finding on whether the appellant was denied a right to a fair trial by
reason of non disclosure of specific particulars of alleged bribery”Court held that bearing in mind
the principles involved under the concept of fair hearing and trial, given that the appellant did have
fair notice of the case which he duly responded to, court was unable to find that the irregularity of not
putting the particulars of bribery in the body of the respondent’s affidavit unduly prejudiced the
appellant in any way. The Court must also bear in mind the direction of Article 126(2)(e) of the
Constitution that subject to the law, substantive justice must be administered without undue regard to
technicalities. In the peculiar circumstance of this case, it would defeat justice to hold that a case that
had gone through a full trial be defeated by a technicality particularly when the appellant did not raise
that technicality before, and there is no evidence that he suffered any prejudice and that there was a
denial of his right of fair hearing.
The second ground of appeal was that “The learned majority Justices of the Court of Appeal erred
in law and fact when they failed to re-appraise the evidence of the case before the trial court
thereby arriving at wrong conclusions and finding.” Court held that this was an election petition
where, under Rule 15, all evidence at the trial is by way of affidavit except where a person who swore
an affidavit is cross-examined by the opposite party or re-examined or where the court of its own
motion examines any witness.
That it would be too narrow to say that one is guilty of bribery if one gives Shs.1,000/= to an
individual voter to vote for him, but he is not guilty of bribery if he gives Shs.100,000/= to a group of
voters to buy or do something for their common use so that they vote for him. That the appellant
went to the village two days before the election asking the voters in that village to vote for him. The
people set their terms, i.e. he had to give them money to repair their boreholes before they could vote
for him. He obliged. This was bribery envisaged by Section 68 of the PEA. Proof of one act of an
illegal practice is enough on its own to annul an election.
In the case Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition
Appeal No.18 of 2007) SC 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 the respondent. The
judge set aside the election of the appellant and declared the parliamentary seat vacant. On 23 rd
February, 2006, there were both presidential and general parliamentary elections throughout this
country. Mukasa Anthony Harris, the appellant, Dr. Bayiga Michael Philip Lulume, the respondent,
together with one Luwaga Livingstone contested for the parliamentary seat of Buikwe County South
Constituency. The appellant obtained 13,690 votes; the respondent obtained 13,026 votes while
Luwaga Livingston got 3,994 votes. Consequently the Electoral Commission declared the appellant
the winner and therefore the Member of Parliament for that constituency. The respondent was
dissatisfied with the result of the election. He petitioned the High Court at Jinja and raised many
complaints against both the Electoral Commission and the appellant. In respect of the appellant, the
respondent alleged, among other things, that the appellant had committed various electoral offences,
including bribery, personally or through his agents. On the ground of failure to properly evaluate
the record (sic) and therefore came to a wrong decision, the Supreme Court held that the learned
trial judge properly directed himself when, after referring to Section 61(1) of the PEA, 2005, he
stated that “It is settled law that the burden of proof in an election petition lies upon the
petitioner who is required to prove every allegation contained in the petition to the satisfaction
of the court. The standard of proof is a matter of statutory regulation by Subsection 3 of
Section 61 of the PEA, 2005. The Subsection provides that the standard of proof required to
prove an allegation in an election petition is proof upon the balance of probabilities”. It was
further held that it is hardly reasonable to imagine that a parliamentary candidate could give out
money to people who were not voters in a particular locality. Nor is it reasonable to imagine that
money could have been given out for anything else other than to persuade the voters to vote for the
appellant. That there is ample evidence showing that money was released by the appellant for
bribing.
In the case of Paul Mwiru v Hon. Igeme Nathan Nabeta Samson & 2 Others (ELECTION
PETITION APPEAL NO.6/11) [2011] UGCA 9 on appeal Byamugisha JA held that Section 68 of
the PEA makes provisions for illegal practices. The provisions of the section make the giver and
recipient guilty of an illegal practice. The commission of an illegal practice once proved to the
satisfaction of the court is sufficient ground in itself under section 61of PEA to set aside the election
of a candidate as a Member of Parliament. It is therefore essential in allegations of bribery for the
party alleging the same to prove on a balance of probabilities that the person or the persons allegedly
bribed were registered voters. That from the affidavit evidence, there is no dispute that welding and
compressor machines were delivered to a number of garages in and around the constituency which
the 1st respondent represents in Parliament. The exercise took place during the campaign period. That
the evidence proved to the satisfaction of the court that the 1 st respondent is the one who personally
distributed the said machines thus committing an illegal act of bribing voters. This act alone is
sufficient to nullify the 1st respondent’s election as a Member of Parliament
The petition shall be divided into paragraphs numbered consecutively, each of which shall, as nearly
as may be, be confined to a distinct portion of the subject; and no costs shall be allowed for the
drawing or copying of any petition not substantially in compliance with this sub rule unless the court
otherwise directs. The petition shall conclude with a prayer, as for instance, that the court may order
—
(a) that some specified person be declared elected other than the candidate declared validly elected; or
(b) that the election be set aside and a new election held.
At the foot of the petition shall be stated (a) an address for service within five kilometers from the
office of the registrar to which documents intended for the petitioner may be sent and the name of the
occupier; and (b) a note, signed by the petitioner giving the name of the petitioner’s
advocate or, as the case may be, stating that the petitioner acts for himself or herself.
The petition shall be accompanied by an affidavit setting out the facts on which the petition is based
together with a list of any documents on which the petitioner intends to rely.
Who may present a petition (Locus standi)

Section 60Election petitions under the Act shall be filed in the High Court. An election petition may
be filed by any of the following persons— a) a candidate who loses an election; or (b) a registered
voter in the constituency concerned supported by the signatures of not less than five hundred voters
registered in the constituency in a manner prescribed by regulations.
Every election petition shall be filed within thirty days after the day on which the result of the
election is published by the Commission in the Gazette. For the purposes of the section, where any
rules of court require a petition to be filed in any particular registry of the High Court, the filing of the
petition in a registry of the High Court other than in the first-mentioned registry shall not invalidate
the petition; and the registrar at the place where it is filed shall take necessary steps to cause the
petition to be transferred to the appropriate registry but the court may award costs in respect of such
filing.
Who may be the respondent?

Any person whose election is questioned by a petition, and the Electoral Commission or any
returning officer of whose conduct a petition complains, may be made a respondent. An unsuccessful
candidate cannot be made a respondent to an election petition against his or her will. Where more
petitions than one are presented in relation to the same election, the court may direct that some or all
of those petitions be dealt with as one petition-R.18
Service of Petition
Sec.62 of the Parliamentary Elections Act notice of writing of the presentation of petition
accompanied by a copy of the petition shall within 7 days after filing of the petition be served by the
petitioner on the respondent or respondents as the case may be. Within 7 days after filing the petition
with the registrar, the petitioner or his or her advocate shall serve on each respondent notice in writing
of the presentation of petition, accompanied by a copy of the petition, and such service must be
personal.
In the case Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition
Appeal No.18 of 2007) SC, the first ground was that the learned Justices of Appeal erred in law
and fact in failing to find that petition was a nullity as there was non-service of the notice and
the petition. Tsekoko JSC held that Section 62 of the P. E. A, 2005, reads as follows: “Notice in
writing of a presentation of petition accompanied by a copy of the petition shall, within 7 days
after the filing of the petition, be served by the petitioner on the respondent or respondents, as
the case may be”. Similarly Rule 6(1) of the Rules, reads as follows: “Within 7 days after filing the
petition with the Registrar, the petitioner or his or her advocate shall serve on each respondent
notice in writing of the presentation of the petition, accompanied by the copy of the petition”.
That the provisions of Section 62 and of Rule 6(1) are not mandatory and the use of the word "shall"
in both provisions is directory and not mandatory. The provisions direct what ought to be done
because the two provisions do not state what would happen if the notice and or the copy of the
petition are not served within the 7 days or indeed after the 7 days. Normally either Section 62 itself
or Rule 6(1) would have stipulated that omission to serve the notice of presentation would lead to a
specified sanction which is missing in both provisions. Further, that there is no provision, either in
the Act itself or in the Rules, indicating what would be the effect because of non-service. That the
curative provisions where there is default in complying with any of the Rules after the petition is
presented and or during trial of the petition, is found in Rule 19 to extend time for service. That there
is no material upon which court can say conclusively that the appellant did not get the petition within
the prescribed period of 7 days and the two courts were right in declining to dismiss the petition on
account of non-service of the petition. That this is a case where paragraph (e) of clause (2) of Article
126 of the Constitution is applicable.
In the case of Kasibante Moses vs. Katongole Singh Marwah & Electoral Commission No. 23/2011 held
about non service of the petition that the Supreme court of Uganda in the case of Mukasa Anthony Harris
vs. Dr. Bayiga Micheal Phillip Lulume, SC Election Petition No.8/2007 gave a final position on this point.
The omission to serve the notice of presentation of the petition is an irregularity which does not vitiate the
proceedings in an election petition.
Where the respondent cannot be found within three days for effecting personal service on him or her,
the petitioner or the advocate of the petitioner shall immediately make an application to the court
supported by an affidavit, stating that all reasonable efforts have been made to effect personal service
on the respondent but without success.-r.6(4) If the court is satisfied that all reasonable efforts have
been made to effect service on the respondent but without success, the court may order that service be
effected in any of the ways prescribed by Order V of the Civil Procedure Rules for service other than
personal service, fixing the date for appearance within seven days.
The failure to serve the respondent with the petition within the prescribed time will lead to striking
out the petition-See Jude Mbabali vs. Sekandi & Electoral Commission Election Petition Appeal No.
of 2006.
Answer of respondent to petition

Under R.8, If the respondent wishes to oppose the petition, the respondent shall, within ten days after
the petition was served on him or her, file an answer to the petition. The respondent’s answer shall be
filed with the registrar together with six copies of it for use by the court and for service on the
commission, the returning officer and the other respondents, if any. The answer of the respondent
shall be accompanied by—(a) an affidavit stating the facts upon which the respondent relies in
support of his or her answer; and (b) a fee of fifty thousand shillings. The respondent shall, within
five days after filing the answer with the registrar, serve a copy on the petitioner or his or her
advocate. Where the respondent requires further and better particulars of the petition, he or she shall
apply for the particulars together with the answer. The petitioner shall, subject to the directions of the
court, supply any particulars requested on or before the date set for trial of the petition.
Time for presentation of election petition

Sec.60 (3) Parliamentary Elections Act provides that every election petition shall be filed within 30
days after the day the results are published by the Commission in the gazette. Similarly a local
government election petition shall be filed within 14 days after the date on which the results of the
election have been notified by the Electoral Commission in the gazette. The time set under the
legislations within which to lodge a petition must be strictly adhered to otherwise time cannot be
extended by court unless the statute provides for such extension. In the case of Makula International
Ltd v His Eminence Cardinal Nsubuga [1982] HCB 11 is the authority for this proposition of law
that a court has no residual or inherent jurisdiction to enlarge a period of time laid down by a statute.
Burden and Standard of Proof
The burden of proof in election petition lies on the petitioner who has to prove his or her case to the
satisfaction of the Court-S.61(1) Parliamentary Elections Act. Any ground for setting aside an
election petition shall be on a balance of probabilities-S.61(3). Although the standard of proof is on
the balance of probability, it must be slightly higher than in ordinary cases. This is because an
election is of great importance both to individuals concerned and the nation at large.
Withdrawal of Petition
R. 22 of the Parliamentary Elections (Elections) Rules, a petition shall not be withdrawn except with
leave of the court and after such notice has been given as the court may direct. Where there is more
than one petitioner, no application for leave to withdraw the petition shall be made except with the
consent of the other petitioners. An application for leave to withdraw a petition shall be supported by
an affidavit of the petitioner and his or her advocate, if any, stating the ground on which the petition
is sought to be withdrawn and also stating that to the best of their knowledge and belief, no agreement
or terms of any kind has or have been made or undertaking made in relation to the petition or, if any
lawful agreement has been made, stating the terms of the agreement.
The petitioner shall, when filing the application for leave to withdraw, give to the registrar a sufficient
number of copies for use by the court and for service on the respondents, the Attorney General, the
commission and the returning officer, unless, in the case of the commission
and the returning officer, they are respondents in the case.
If the court gives leave for the withdrawal of a petition, the court shall make a report to the
commission stating the reasons for the withdrawal. If the petition is withdrawn, the petitioner shall be
liable to pay the costs of the respondent.
Appeals
S.66(1) a person aggrieved by determination by the High court in determination of an election may
appeal to the High Court. R. 29 the notice of appeal may be given either orally at the time judgment is
given or in writing within seven days after the judgment of the High Court against which the appeal is
being made. R. 30 a memorandum of appeal shall be filed with the registrar (a) in a case where oral
notice of appeal has been given, within fourteen days after the notice was given; and (b) in a case
where a written notice of appeal has been given, within seven days after notice was given. R. 31the
appellant shall lodge with the registrar the record of appeal within thirty days after the filing by him
or her of the memorandum of appeal. R. 36 provides that subject to such modifications as the court
may direct in the interests of justice and expedition of the proceedings, any rules regulating the
procedure and practice on appeal from decisions of the High Court to the Court of Appeal in civil
matters shall apply to appeals under this Part of these Rules.
The Parliamentary Elections (Amendment) Act 2010 amended section 66 of the principal Act and
substitute for subsections (2) and (3) the following—
“(2) The Court of Appeal shall proceed to hear and determine an appeal under this section within six
months from the date of filing of the appeal and may for that purpose suspend any other matter
pending before it. Notwithstanding section 6 of the Judicature Act, the decisions of the Court of
Appeal pertaining to parliamentary elections petition shall be final.”;
TOPIC XI
JUDICIAL REVIEW PROCEDURE

Public law concern the law governing relations between the individual and public bodies, and the
relations between different public bodies such as central and local government. The courts have
developed a body of substantive principles of public law to ensure that public bodies do not exceed or
abuse their powers and that they perform their duties.
Judicial review is a nature of proceedings by means of which the High Court exercises its jurisdiction
of supervising inferior courts, tribunal and other public bodies, commanding them to do what their
duty requires in every case where there is no specific remedy and protecting the liberty of the subject
by speed and summary interposition.
The primary method by which courts exercise their supervisory jurisdiction over public bodies to
ensure that they observe the substantive principles of public law is by way of the application for
judicial review.
The application for judicial review is specialized procedure by which the prerogative remedies of
Certiorari (to quash a decision), Prohibition (to refrain unlawful action) or mandamus (to compel the
performance of duty) and alternatively, or in addition a declaration, or injunction. Damages may also
be awarded if one of the five remedies is granted and damages would have been available if claimed
in an ordinary suit.
Thus, the Courts will review an exercise of power to ensure that the public body;
a) Has not made an error of law and fact;
b) Has considered all relevant factors, and not taken into account any irrelevant factors or abused
its discretion
c) Has acted for a purpose expressly or impliedly authorized by statute
d) Has acted in a way that is so unreasonable that no reasonable public body would act in that
way; and
e) That the public body has observed procedural requirements and the common law principles of
natural justice or procedural fairness and legitimate expectation has not improperly delegated
its power.
Art. 42 of the Constitution provides for the right to just and fair treatment in administrative decisions.
That any person appearing before any administrative official or body has a right to be treated justly
and fairly and shall have a right to apply to a court of law in respect of any administrative decision
taken against him or her.
The distinction between Judicial Review and Appeal lie in that an appeal is concerned with the merits
of a decision whereas review is concerned with its legality. Under judicial review proceedings the
court claims to exercise a supervisory, not an appellate jurisdiction. An appeal involves the transfer of
a case from a lower court to a higher court for the purpose of rehearing. The right of appeal is usually
conferred by a statute, which normally sets out the circumstances under which it may be invoked.
Application for Judicial Review

Section 36 Judicature Act provides for prerogative orders. It provides that the High Court may make
an order, as the case may be, of (a) mandamus, requiring any act to be done; (b) prohibition,
prohibiting any proceedings or matter; or (c) certiorari, removing any proceedings or matter to the
High Court.
Rule 3 of the Judicature (Judicial Review) Rules 2009 provides for cases that are appropriate for
judicial review. It states; An application for An order of mandamus, prohibition or certiorari; or
An injunction under section 38 (2) of the Judicature Act restraining a person from acting in any
office in which the person is not entitled to act, shall be made by way of an application for judicial
review in accordance with these rules.
Similarly an application for a declaration or an injunction may be made by way of application for judicial
review, and on such an application the High Court may grant the declaration or injunction claimed if it
considers that, having regard to (a) the nature of the matter in respect of which relief may be granted by
way of an order of mandamus, prohibition or certiorari; (b) the nature of the persons and bodies against
whom relief may be granted by way of such an order, and (c) all the circumstances of the case, it would be
just and convenient for the declaration or injunction to be granted on an application for judicial review-
R.3(2).
Any application for judicial review, any relief mentioned may be claimed as an alternative to any other
relief so mentioned if it arises out of, or relates to, or is connected with the same matter-R.4
Time for filing an Application for Judicial Review.

R.5 provides for the time for applying for judicial review. An application for judicial review shall be
made promptly and in any event within three months from the date when the grounds of the application
first arose unless the Court considers that there is good reason for extending the period within which the
application shall be made. Where the relief sought is an order of certiorari in respect of any judgment,
order, conviction or other proceedings, the date when the grounds for the application first arose shall be
taken to be the date of that judgment, order, conviction or proceedings if that decision is delivered in open
court, but where the judgment, order, conviction or proceedings is ordered to be sent to the parties, or
their advocates, (if any), the date when the decision was delivered to the parties, their advocates or prison
officers, or sent by registered post.
The rule shall apply, without prejudice to any statutory provision which has the effect of limiting the time
within which an application for judicial review may be made.
Mode of Applying for Judicial Review

R. 6 application for judicial review shall be made by notice of motion. The notice of motion must be
served on all persons directly affected and where it relates to any proceedings in or before a lower
court and the object of the application is either to compel the lower court or an officer of the lower
court to do an act in relation to the proceedings or to quash them or any order made in the
proceedings, the notice or summons shall be served on the registrar of the court and, where any
objection to the conduct of the presiding officer is to be made, on the presiding officer. There shall be
at least ten days between service of the notice of motion and the hearing. An affidavit of service is
required.
R. 7 allows the applicant to amend his or her motion.
R.8 provides for claims for damages. That on an application for judicial review the court may, subject,
award damages to the applicant, if (a) he or she has included in the statement in support of his or her
application for leave, a claim for damages arising from any matter to which the application relates, and (b)
the court is satisfied that, if the claim had been made in an action begun by the applicant at the time of
making his or her application, he or she could have been awarded damages.
In the case of Picfare Industries ltd v AG &Anor H.C.MISC CAUSE NO. 258 of 2013 Picfare
Industries Limited brought the application by way of Notice of Motion under the Judicature (Judicial
Review) Rules 2009, R. 3 & 6 and S. 33 and 36 (1) of the Judicature Act Cap 13 seeking orders that
an order of Mandamus to compel the respondent Attorney General and Treasury Officer of accounts
Ministry of Finance, Planning and Economic Development to carry out statutory duty to pay the
applicant the sum of UGX 18.692.568.714= (Eighteen Billion sis hundred and sixty eight thousand
seven hundred fourteen shillings) and that the respondent appear before court to show cause why they
should not pay the decree holder/judgment creditor the money due from them or so much there of as
may be sufficient to satisfy the decree and the costs of the mandamus proceedings for judicial review,
an order for the Treasury Officer of Accounts Ministry of Finance, Planning and Economic
Development to show cause why he should not be committed to civil prison for nonpayment of the
proceeds of the Consent judgment and failure to implement the certificate of order against
Government made by the Court.
Justice Stephen Musota held that from the record, the application was filed on 19th April 2013
seeking to enforce a consent judgment entered into on 20th May 2011. That rule 5(1) provides that“(1)
An application for Judicial Review shall be made promptly and in any event within three months
from the date when the grounds of the application first arose, unless court considers that there is
good reason for extending the period within which the application should be made”. That by filing
this application on 30th April 2013 almost one year after the grounds arose, the application is clearly
time barred because the filing was clearly done more than three months from due date. That it was
held in Re Mustapha Ramathan for orders of certiorari prohibition and injunction Civil Appeal
25 of 1996 (CA) that:“Statutes of limitation are in their nature strict and inflexible enactments.
Their overriding purpose is interest reipublicalut sit finis litum, meaning litigation shall be
automatically stifled after a fixed length of time irrespective of the merits of the particular case.”
That the proper procedure should have been for the applicant to apply for extension of time within
which to apply for judicial review under Rule 5(2) of the Judicature (Judicial Review) Rules 2009,
which was not done in this case. The application incompetent and will be struck out. That even if the
application is not stuck out, it would all the same not have succeeded because there is no indication in
the application that there is any decision complained of which is tainted with any illegality,
irrationality and procedural impropriety. Twinomuhangi Vs Kabale District & others 2006 (1)
HCB 130, 131 per Kasule Ag J (as he then was). That the under lying principle in order to proceed in
an application for Judicial Review is for the applicant to show that the respondent(s), a public body
has taken a decision or done an act which is tainted with illegality, irrationality and procedural
impropriety. That there is nothing to show that the respondents have taken any decision nor done any
act to show that the Attorney General will not pay to the applicant the monies owed to them under the
consent judgment. A writ of mandamus will not issue to enforce doubtful rights or those rights that
are the subject of disputes. Afro Motors Ltd and OkumuRinga Patrick AloysiousMisc Cause No.
693 of 2006 Arising from Misc Application 203 of 2006. That the order sought to compel the
respondent to appear before court and show cause why they should not pay the decretal amount to the
applicant or so much there of as may be sufficient to satisfy the decree and an order for the Treasury
Officer of Accounts Ministry of Finance, Planning and Economic Development to show cause why
he should not be committed to civil prison for non-payment of the proceeds of the consent judgment
are premature prayers because the mandamus proceedings have not terminated. These payers have
been made when these proceedings are pending. It is only after an order for mandamus has been
granted that an applicant can properly move court against the respondent to show cause why they
have not paid the decretal sum. These prayers are to say the least speculative. Such speculative
circumstances produce not an ‘aggrieved’ “party” nor, indeed, a real dispute that is justifiable in any
court of law
However in the case of GoodMan Agencies Ltd &Ors vs. A.G hccs No. 719/1997 an application for
judicial review on which an order for mandamus directing the government through the commissioner
treasury comply with the judgment and decree of court. Justice Tabaro held that by judgment dated
14-11-2005 it was decreed that government do pay a sum, that subsequent ruling of court it was
ordered that the decretal amount be paid in court but to date the defendant Attorney General has not
met the decretal amount. That ordinarily judgment creditors would be entitled to proceed with
execution, but execution cannot be permitted against the government. That since there is no other
mode or channel for recovery of the decretal amount, an application is granted and an application of
mandamus shall be fixed.
In the case of Uganda Tax Operators & Drivers Association v Kampala Capital Council
Authority HC MISC. APPLICATION 137 OF 2011 an application for Judicial Review was
brought under Articles 26, 28(1) and 42 of the Constitution, S. 36 of the Judicature Act and Rules
3(1) (a), 3(2), 6 and 8 of the Judicature (Judicial Review) Rules, 2009 seeking an order of certiorari
quashing the decision of the 2nd respondent that “the applicant’s contract expires 31stOctober 2011
and that the Management of the Taxi Park shall revert to KCCA and that the management is to
engage in revenue collection as communicated in the memo of 18 thOctober”, an order of
Prohibition and or Injunction restraining the respondent and their servants or agents from interfering
with the applicants management contract of taxi operations in and around the city expiring
31stOctober 2014, an order awarding general/exemplary damages to the applicant for the loss incurred
arising out of the persistent interference with its performance under the management contract to its
detriment by both the respondents.
Justice Eldad Mwangusha held that under Section 36(1) of the Judicature Act (Cap 13) of the Laws of
Uganda the High Court may, upon application for judicial review, grant any one or more of the
following reliefs in a Civil or Criminal matter. 1. An order of mandamus, requiring any act to be
done; 2. An order of prohibition, prohibiting any proceedings or matter; 3. An order of certiorari,
removing any proceedings or matter into the High Court; 4 An injunction to restrain a person from
acting in any office or matter.5. A declaration or injunction not being an injunction referred to in
paragraph (d) of this Sub-section. That the reliefs underlined are the reliefs sought in this application
in addition to damages which are provided for under Section 36(2) of the Act. That in the case of
John Jet Tumwebaze vs Makerere University Council and two others (High Court Civil
Application No. 78 of 2005).The Hon Justice RemmyKasule Ag. Judge as he then was states that an
order of certiorari issues to quash a decision which is ultra vires or vitiated by an error on the face of
the record while the order of prohibition goes out to forbid some act or decision which would be ultra
vires. He adds that while certiorari looks at the past, prohibition looks at the future. That from the
pleadings by both parties the controversy is on whether or not there was an extension of the
applicant’s contract to 30.10.2014 and if whatever the respondents are doing infringes on the
applicant’s right to run the contract then the solution lies in an ordinary suit where the validity of the
contract will be tried and finally resolved and not in the prerogative orders of certiorari and
prohibition. That this Court would find the same difficulty granting the orders sought without
vindication of the applicant’s rights under the contract and for this reason Court resolves the issue as
to whether or not this is a proper case for Judicial Review in the negative.
In the case of Kihika v Igeme Nabeta& 6 Ors (HCM CAUSE NO. 88 OF 2014) the application
under Articles 42 and 50 of the Constitution, Sections 33 and 36 Judicature Act, Rules 3, 4, 6 and 7 of
the Judicature (Judicial Review) No. 11 of 2009 and Section 98 of the Civil Procedure Act, seeking
orders that an order of Certiorari to issue against the respondents jointly and/or severally quashing
their recommendations and/or decisions by which they purported to terminate the applicant’s position
as Acting Managing Director of Uganda Broadcasting Corporation and referred him to “his” parent
Ministry, a declaration that the respondents jointly and/or severally acted ultra vires and illegally and
thus occasioned miscarriage of justice against the applicant, when they made the aforesaid
recommendations, an order of mandamus compelling and directing the respondents to restore the
applicant in his position as the Acting Managing Director of Uganda Broadcasting Corporation, an
order of prohibition, prohibiting the respondents from further recognizing the unlawful appointment
of Eng. Angello Nkeeza as the Acting Managing Director, an injunction restraining the respondents
from interfering with the applicant’s position as Acting Managing Director, general, exemplary and
punitive damages.
The issue was whether the application for Judicial Review is properly brought to court.
On whether the applicant ought to have raised a complaint to the Labour Officer as provided under
Section 93 and 94 of the Employment Act, Court held that it has had occasion to pronounce itself on
this issue in Hilda Musinguzi Vs Stanbic Bank (U) Ltd HCCS No. 124 of 2008, where court ruled
that the unlimited original jurisdiction of the High Court granted under Article 139 (1) of the
Constitution of the Republic of Uganda, cannot be ousted by the granting of jurisdiction by a statute
to another body. See also Habre International Co. Ltd Vs Kassamand Others [1999] EA 125, and
David B. Kayondo Vs The Cooperative Bank (U) Ltd CA 10/91.
As to whether the applicant had the option of filing a matter in the Industrial Court, Court found that
the applicant filed a Judicial review matter seeking the quashing of certain decisions through orders
of Certiorari. Judicial review matters, are by administrative arrangement, handled exclusively by the
Civil Division of the High Court. The judicial review application was therefore, appropriately filed in
the civil division of the High Court
That Rule 3 of the Judicature (Judicial Review) Rules provides for cases that are appropriate for
judicial review. It states; An application for An order of mandamus, prohibition or certiorari; or
An injunction under section 38 (2) of the Judicature Act restraining a person from acting in any
office in which the person is not entitled to act, shall be made by way of an application for judicial
review in accordance with these rules. Rules 6 (1) provides for the mode of applying for judicial
review. It states; “In any criminal or civil cause or matter, an application for judicial review shall
be made by notice of motion in the form specified in the schedule to these rules.”
That given the nature of the remedies sought in the application, the application is properly before
court. The issue of whether those remedies are available to the applicant would have to be
determined at the point of determining the merits of the main application, which in this case is not
possible without submissions from the applicant. Given the nature of the remedies sought in this
application, the application is properly before court. The issue of whether those remedies are
available to the applicant would have to be determined at the point of determining the merits of the
main application, which in this case is not possible without submissions from the applicant
The second issue was whether in the circumstances the applicant was unlawfully terminated
from the position of Acting Managing Director of Uganda Broadcasting Corporation. Court held
that without any submissions from the applicant to the contrary, the Board and the Minister acted
within the powers vested in them respectively by the law. That the applicant has not presented valid
reasons for court to find that he was unlawfully terminated from the position of Ag. Managing
Director of Uganda Broadcasting Corporation.
TOPIC 12
Procedure, Practice & Proceedings at the East African Court of Justice

Civil Procedure LL LLB IV Notes

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Civil Procedure LL LLB IV Notes

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ISLAMIC UNIVERSITY IN UGANDA

TEXT BOOKS, ARTICLES AND OTHER REFERENCE MATERIALS

COURSE OVER-VIEW AND CONTENT

g) Opposing Application for leave

h) Conditional or Unconditional Leave

The Applicable Law on Affidavit Evidence

a) Meaning and Contents of an affidavit

b) Circumstances where Affidavit Evidence is Applicable, Cross

d) Procedure of Deponing Affidavits, including Affidavits by

e) Affidavits Deponed in Representative Capacity

(g) Commissioning of Affidavits, implications and effect of non

(h) Filing of affidavits and Consequences of failure to file Affidavits

j) Annextures to Affidavits, requirement of sealing and consequences

k) Affidavits deponed by Advocates, implications and legal

l) Inconsistencies, Contradictions in Affidavits and Legal

m) Argumentative, prolix and affidavits constituted by irrelevant

n) Applicability of Article 126(2) (e) to Defects in Affidavits

Other Authorities as may from time to time be referred to

Default Judgment [the law, Procedure and Practice,

Consent Judgments, Compromises [the law, Procedure and Practice

Setting Aside of Judgment and Decree Under Order 36 r. 11

Setting Aside of Judgments and Decrees under O.9 R.12

Setting Aside of Ex Parte Decrees Under Order 9 Rule 27

Cause listing of Cases and service of Hearing Notices

Dismissal andRe-Instatement of Suits

PRE – TRIAL AND JUDGEMENT REMEDIES

Interlocutory Injunctions, Interim Orders and Preservation of Property

Interlocutory/ Temporary Injunctions

SECURITY FOR COSTS AND FURTHER SECURITY FOR COSTS

Security for Costs in Election Matters

CONSEQUENCES OF JUDGEMENTS AND RES JUDICATA

EXECUTION AND STAY OF EXECUTION

APPEALS, REVIEW AND REVISION

REVIEW OF DECREES AND ORDERS

APPEALS IN MAGISTRATES COURTS AND FROM MAGISTRATE’S COURTS TO HIGH

APPEALS FROM ORDERS OF REGISTRARS TO THE HIGH COURT

APPEALS FROM ORDERS OF REGISTRARS TO THE HIGH COURT

TOPIC NINE JUDICIAL REVIEW PROCEDURE

TOPIC 10: CONSTITUTIONAL LITIGATION

Scope of Application of Order 36

The Rationale for Summary Procedure

What is a liquidated demand

Default Judgment under O.36

Applications for Leave to Appear and Defend

k) Time for Filing the Application

l) Applications filed out of time, Consequences and remedy

m) Grounds in Support of Application, Test and threshold

Suing upon a Bill of Exchange like Cheque, Promissory note

Attaching a Draft Written Statement of Defense to the Application.

Judgment upon refusal to give leave.

Judgment for part of claim, defence as to residue.

Conditional or Unconditional Leave

Orders for further conduct of suit.

iii) An affidavit in rejoinder

This is an additional affidavit or subsequent affidavit in addition to the original affidavit.

Whether stamp duty is chargeable on an affidavit.

Sworn/Declared before me, ______________________________, at this ________ day of

Commissioning of Affidavits, implications and effect of non-compliance

Filing of affidavits and Consequences of Failure to file Affidavits

Affidavits deponed by Advocates, implications and legal consequences

Inconsistencies, Contradictions in affidavits and legal consequences

Applicability of Article 126(2) (e) to Affidavits

Topic 3-Types of Judgments

Sworn/Declared before me, ______________________, at this day of