Civil Procedure 2 Notes

SUMMARY PROCEDURE AND ALL APPLICATIONS UNDER O.36.
O.36 creates a special procedure for commencement of a suit by way of a specially endorsed
plaint accompanied by a valid affidavit.
1. The scope of application of O.36

 Order 36 R.[1] appears to restrict suits there under to the High Court and magistrates
courts. However, although the rule provides for magistrates courts, the order doesn’t
apply to Magistrates’ Courts Grade II. This is because they have their own rules of
procedure under the third schedule of the MCA
In Nakabago Cooperative society v Livingston Kyanga., Mpagi-Bahigeine J (as she then

was) held that: the Civil Procedure rules which provide for summary suits, are
inapplicable in courts presided over by magistrates grades II and III; the applicable Rules
are set out in schedule 3 of MCA..
2. O.36 has no application where the intended defendant to the suit is the Attorney
General.
This is set out in R.17(1)(2) of the Government proceeding Civil procedure Rules.
However under the same Rule, the Government or an AG can commence a summary suit
against any defendant provided the claims are suitable for O.36
This rule was considered in the case of Uganda National Roads Authority v Vivo Energy
Uganda ltd (MA No. 209 OF 2014)
The plaintiff/respondent brought a summary suit against the defendant/applicant for which
Counsel for the applicant raised a point of law in regard to Regulation 17(2) of the
Government Proceedings Regulations which bars bringing suits against the government by
summary procedure under Order 36 of the CPR and prayed that the suit be dismissed. In reply,
counsel for respondent argued that it is not logical that while the government can bring suits
under the same procedure, proceedings cannot be instituted against it under the same
procedure. He argued that the Constitution 1995 in Article 21 provides for equality of all
persons.
Held;
Court agreed with Counsel for the respondents that unjustified discrimination between the
state and an individual is no longer tenable in view of the provisions of Chapter Four of the
Constitution 1995. For the above reason the point of law raised by Counsel for the
applicant failed.
In the case of Kabandize & 20 others Vs KCCA No.28 of 2011 it was held that in view of
Article 21(1) of the Constitution, a law cannot impose a condition on one party and exempt the
other from the same and still be in conformity with Article 21(1).
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ALWAYS REMEMBER LOYOLA IN YOUR PRAYERS. AMDG love beyond words MAGIS
Rationale of Order 36;
 The basic rationale of summary procedure, is to enable a plaintiff obtain a quick

judgment in a matter where a defendant has no plausible defence. The defendant is not
allowed to file a defence unless leave to do so is sought and granted by court.
Post Bank (U) Ltd v Ssozi (CIVIL APPEAL NO: 08 OF 2015) [2017]
Held; Supreme Court; Jotham Tumwesigye JSC.
Order 36 was enacted to facilitate the expeditious disposal of cases involving debts and
contracts of a commercial nature to prevent defendants from presenting frivolous or
vexatious defences in order to unreasonably prolong litigation. Apart from assisting -
the courts in disposing of cases expeditiously, Order 36 also helps the economy by
removing unnecessary obstructions in financial or commercial dealings.
Defendants in cases which fall under Order 36 are protected by being given the right to
apply to court for leave to appear and defend the suit. When the 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. (Order 36 rule 4).
If the 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. (Order 36 rule 5)
If the defendant fails to apply for leave to appear and defend in the time prescribed
(which is 10 days), the plaintiff is entitled to a decree for an amount claimed in the
plaint with interest, if any. (Order 36 rule 3(2)).
Rationale of Order 36 was considered in detail in BEGUMISA GEORGE v EAST

AFRICAN DEVELOPMENT BANK by Justice Irene Mulyagonja;
“The rationale of Order 36 was succinctly stated in Zola & Another v. Ralli Brothers
Ltd. & Another [1969] EA 691 at 694, a decision about the Kenya equivalent of our
then Order 33 CPR as follows:-
“Order 35 is intended to enable a plaintiff with a liquidated claim, to which there is
clearly no good defence, to obtain a quick and summary judgment without being
unnecessarily 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 any reasonable
ground of defence to the claim, the plaintiff is not entitled to summary judgment.
… Normally a defendant who wishes to resist the entry of summary judgment should
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place evidence by way of affidavit before the judge showing some reasonable ground of
defence.”
The order is draconian. Instead of trial first and then judgment, there is never a
protracted trial but judgment, once and for all at once, and without the defendant
having his day in court on fully explored merits. The high cost of litigation and the
premium of holding cash when interest rates are high greatly increase the attractiveness
of procedural shortcuts such as Order 35 (our Order 36) to commercial plaintiffs for “It
is more advantageous to win with a technical knockout in the first round than to win on
points in round twelve.” (R. Kuloba, supra).
According to Lord Esher, M.R in Roberts v. Plant [1895] 1 QB 597:

“It is a strong thing to give such a power to a judge, and this court and all the
courts have said therefore, that they would watch strictly the exercise of that power.
But they did not mean by that that they would give effect to every pettifogging objection
which the ingenuity of a defendant could raise.”
Zola and another v Ralli Brothers Limited and another [1969] 1 EA 691
It was held that Order 36 is intended to enable a plaintiff with a liquidated claim, to which
there is clearly no good defence, to obtain a quick and summary judgment without being
unnecessarily kept from what is due to him by the delaying tactics of the defendant
Nature of claims
What claims that can be brought under O.36?
Order 36 r 2(a) (b) describe the claims that can be brought under O 36.
 According to O.36 r.2, summary procedure is applicable in all suits:-

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, inter alia
Order 36 is optional and only evoked by a party making a liquidated claim
 A liquidated demand for purposes of O.36 r 2(a) refers to a specific and certain amount
of money and does not require proof beyond the documented.
Sterling Travel And Tour Services Ltd V Millennium Travel And Tours Service Ltd J
Helen obura on what is meant by a liquidated demand,
’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
courts to try. The same position is reflected under Order 36 rule 2 (a) of the CPR.
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Black’s Law Dictionary 8thEdition 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 the nature of a debt, a
specific sum of 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”.
Court found that the respondent/plaintiff’s claim is not properly brought by summary
plaint because it requires proof by adducing more evidence”
BEGUMISA GEORGE v EAST AFRICAN DEVELOPMENT BANK by Justice Irene

Mulyagonja on what is meant by a proper claim,
Definition of Liquidated demand

There are various interpretations of what amounts to a “liquidated demand. In “The
Annual Practice” (1966, Sweet & Maxwell, London) it was stated that a
liquidated demand is in the nature of a debt, a specific sum of 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. In “The Supreme Court
Practice” (Ed. Jack I. H. Jacobs, 1966, Sweet & Maxwell, London) a liquidated
demand is said to be in the nature of a debt, and 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
 O.36 r2 in its strict sense presupposes that the only claim that can be sustained must be
a liquidated demand only. The phrase the word “only” was explained in Shelter ltd v
Anastaziia Nakazi to mean liquidated demand and nothing else [save for costs].
Also Sir Newnham Worley Uganda Transport Co. Ltd.v. Count de la Pasture (21
E.A.C.A at p. 168) said:
“. . . I think it useful also, in support of the proposition that there is no discretion to
allow a claim to be brought by summary procedure, if it is not precisely within the
terms of Order XXXIII, rule 2, to cite the following from the judgment of Lord Esher,
M.R., in Wilks v. Wood at p. 686: ‘All I can say is that the word “only” in the rule
means “only”, and that if anything else is added to the liquidated demand, the writ does
not come within the definition of a specially endorsed writ’.”
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 It is possible for a plaintiff to claim interest under O.36 r 2(a) provided such interest is
liquidated in nature.
Kasule v Kawesa [1957] 1 EA 611

The plaintiff had instituted this suit by summary procedure under O. 36 of the Civil Procedure
Rules and had claimed Shs. 2,500/- on an agreement, and also claimed interest at six per cent
from the date of filing the plaint; it was argued that the claim for interest is not a liquidated
claim within the meaning of O. 36, there being no provision for interest under the agreement.
Whether interest is a liquidated claim within O. 36?
HELD; that interest cannot be claimed in a suit under O. 36 unless based on an agreement for
interest in the document sued on or on Statute; Court cited with approval, the statement of
Lord Esher MR in Wilks V Wood (1892) 1 QBD 684,686, to the effect that; the word”
only” in the rule means only and that if anything else is added to the liquidated demand, the
writ does not come within the definition of a specially endorsed summary plaint
The plaint presented in this case was irregularly presented under O. 36 because the claim for
interest was not provided for under the agreement.
The issue of Whether interests are recoverable under Summary proceedings was further
considered in the case of BEGUMISA GEORGE v EAST AFRICAN DEVELOPMENT
BANK by Justice Irene Mulyagonja;
“I reviewed the authorities cited by Mr. Guma, i.e. the decisions in Arjabu Kasule v.
F. T. Kawesa [1957] EA 611 and E. M. Cornwell & Co. Ltd. v. Shantaguari
Dahyabhai Desai (1941) 6 ULR 103. It is true that they reflect the position that a
claim under O.36 should not include interest, except where the document sued upon
includes an agreement on interest. However, the decision in Arjabu Kasule discusses
the question further. Relying on the decision in Uganda Transport Co. Ltd. v. Count
de la Pasture (3) (1954), 21 EACA 163, it was held that:
“… where a plaint endorsed for summary procedure contains claims correctly
endorsed and other claims, the court may, by O.33 rule 3 to rule 7 and 10 (Now Order
36 rule 3 to 7 and 10), deal with the claims correctly specially endorsed as if no other
claim had been included therein and allow the action to proceed as respects the
residue of the claim, the court having no power under O.33 (Now Order 36) to strike
out any part of the claim but being unable to give summary judgment for any relief not
within the scope of O.33 rule 2 aforesaid.”
The ratio that a claim including interest cannot be brought under summary procedure is
therefore not applicable to every suit. It will be necessary here to first establish whether
the rest of the respondent’s claim was validly brought under O.36 rule 2 CPR before I
come to a decision that the suit was wrongly endorsed under Order 36 because of a
claim for interest.”
In this case the judge found that Begumisa Enterprises admitted that it owed the respondent
UD$ 3,989,162 and that interest would continue to accrue on the debt at the contractual
lending rates. Court found that the sum of US$ 4,723,995.69 being the debt and the interest
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accruing thereon was a liquidated demand and that the plaint was properly endorsed under
summary procedure
HELD; There is no doubt that Order 36 rule 2 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 Order 36.
b) Being actions for the recovery of land with or without a claim for rent or mesne profits by a
landlord against a tenant e.g. whose term has expired
 O.36r2b applies where the claim is for rent, mesne profit and or recovery of possession
of premises between a land lord and tenant either where the tenancy has expired or
where it has been terminated by notice or where it is forfeited for non payment or rent
In Budai Coffee Hulling Factory Ltd v Eria M Babumba [1963] 1 EA 613

on the import of 36r2b
The plaintiff filed a plaint specially endorsed for summary procedure under Order 36 of the
Civil Procedure Rules claiming vacant possession of certain premises and mesne profits from
December 1, 1962 until possession. The defendant was granted unconditional leave to defend
and at the hearing of the suit raised a preliminary point that O.36I was not applicable as the
action was for the recovery of premises and not land, and that possession could not be
recovered by summary procedure as O.36 r. 2 deals with the recovery of a debt arising out of
actions for the recovery of land.
Held –
(i) under Order 36, r. 2 only debts or liquidated amounts arising out of an action for
the recovery of land are recoverable and permissible under that Order and not
possession of the land;
(ii) ( ii) since the amount claimed in respect of mesne profits was unliquidated
summary procedure was not applicable and the plaint should be struck out. Order
accordingly.
However Briggs, J.A. by obiter in Uganda Transport Co. Ltd.v. Count de la Pasture (21
E.A.C.A., at p. 165), had stated that actions for the recovery of land can be brought by
summary procedure. As this was obiter, the judge in the Budai case above did not find himself
bound by it.
Busingye & Co. Ltd v Mayimuna Muye (MA No. 87 Of 2011) [2012] UGHC 17
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The Respondent/Plaintiff filed a specially endorsed suit against the Defendant/Applicant for
recovery of land by delivery of vacant possession. The applicant applied to be granted leave to
appear and defend. The applicant/Defendant’s Counsel argued that there has to be a definite
claim for rent by the Plaintiff against the Defendant.
Held;
The prayer in the plaint is for recovery of land by giving vaccant possession. There in no claim
as to rent. Summary procedure under Order 36 rule 2 of the 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”. 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 also be instituted by way of summary
procedure under Order 36(2) of the CPR. It provides an ideal quick remedy to the landlord to
recover possession of the property or rent due.
 A specially endorsed plaint must be accompanied by a valid affidavit, failure whereof a

suit becomes incompetent. Shelter v Anastazia supra.
Legal effect and procedure where claim is both liquidated and unliquidated;
 O. 36 r2 is only evoked in claims which are liquidated in nature and doesn’t extend to
unliquidated demands.
 Where the plaintiff includes unliquidated claims in a specially endorsed plaint, the
court may be inclined to take any of the following actions.
i. The court may strike out the suit for non-compliance to O.36 r 2 which restricts that
procedure to only liquidated demands.
The phrase the word “only” was explained in Shelter ltd v Anastaziia Nakazi to mean
liquidated demand and nothing else [save for costs].
HELD; There is no doubt that Order 36 rule 2 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 Order 36
ii. The second possibility is for the court to allow the application for leave to appear
and defend or for plaintiff counsel to consent the same in which the suit proceeds as
an ordinary suit.
iii. The third option is for the plaintiff to abandon the un-liquidated demands in the
plaint.
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Sterling travel and tour services ltd v millennium travel and tours services ltd
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
courts to try. The same position is reflected under Order 36 rule 2 (a) of the CPR.
Uganda Transport Co Ltd V Count De la Pasteur (1954) EA ,21 EACA 163 at 165;The
plaintiff sued for salaries and for damages for breach of contract. He later amended his plaint
to include exemplary damages. The defendant contended that the suit fell squarely outside O33
r2.
Held: That there is no discretion to allow a claim to be brought by summary procedure if it is

not precisely within the terms of O.36 r 2 which requires such a claim to be for liquidated
damages or for recovery of land by a landlord. That save for claim for salaries, the claim for
damages for unlawful and wrongful dismissal was unliquidated..
That Where a plaint endorsed for summary procedure contains claims correctly endorsed and
other claims, the court may, by Order 36, rules 3 to 7 and rule 10, deal with the claims
correctly specially endorsed as if no other claim had been included therein and allow the
action to proceed as respects the residue of the claim, the court having no power under
Order 36 to strike out any part of the claim but being unable to give summary judgment for
any relief not within the scope of Order 36, rule 2, aforesaid.”
SOLOMON BAGANJA v HENLEY PROPERTY DEVELOPERS LTD

The applicant who is the Defendant in the main suit sought the leave of court for unconditional
leave to appear and defend the suit. Counsels informed the court that it was agreed by the
parties that the applicant/Defendant pays the contractual sum of US$26,000 and 1% as penalty
fees. They informed the court that they had not agreed on the issue of costs and that the
Plaintiff wants costs, interest and general damages. Partial judgement was entered for a sum of
US$26,000 and 1% as penalty fees against the Defendant. The court further ordered that
conditional leave is granted to the applicant/Defendant to file a defence in respect of the
remainder of this suit to try the issues of general damages, interests and costs.
Counsel for the defendant raised an objection as to whether the claim for general damages
arising out of a summary suit is properly before court?
In holding, court relied on the authority of; Uganda Transport Company Ltd versus Count
De la Pasture (1954) EACA 163 at 168 and held that;
“It is abundantly clear that the Court of Appeal for East and Africa held that where a claim
does not fall under summary procedure in terms of Order 36 rule 2, the claim should not be
allowed under the Order. The question then is what is the remedy? The obvious remedy
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according to the same court is not to strike out the claim but to treat it as an ordinary plaint
and allow the Defendant unconditional leave to appear and defend the suit.
That where leave has been granted, the Plaintiff is not entitled to summary judgement and it is
immaterial what the claim may be. This is because where the claim does not fall under Order
36 rule 2 of the Civil Procedure Rules, unconditional leave would be granted because the
Defendant would be entitled to it. The Defendant would defend the suit as if it was an ordinary
suit and evidence will not be led by affidavits but true viva voce evidence. The flipside would
be that the Plaintiff would not be entitled to summary judgement on the basis of a claim that
does not fall within the four corners of Order 36 rule 2 of the Civil Procedure Rules. In other
words because there was no power to strike out the Plaintiffs claim, the Defendant would be
entitled to unconditional leave to defend the entire claim as it is on the merits.” Court
overruled the objections.
Default judgement under O.36.
A default judgment connotes judgment entered against a defendant who upon due service of
summons fails to enter appropriate appearance
Before court can enter a default judgment in exercise of its mandate under O.36 the following
must be in existence..
1. The claim must have been liquidated and where it is a combination of liquidated
and unliquidated demands, the plaintiff must abandon the unliquidated demands..
Valery Alia v Alionzi John

HELD; that where there is a claim for liquidated damages together with a claim for pecuniary
damages, the registrar can enter default judgement in respect of the liquidated demand and set
down the suit for assessment of damages in respect to the claim for pecuniary damages. The
claim under a lease or hire of a vehicle pursuant to a written contract with a definite sum
payable monthly or weekly as in this case will give rise to a liquidated demand upon default to
pay the sums certain in money. The plaintiff abandoned the unliquidated.
2. The judgment can only be in respect of the amount set out in the plaint which are
liquidated in nature within the parameters of O.36r2(a)…
Sterling Travel and Tour Services ltd v Millennium Travel and Tour Services; where 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
courts to try. The same position is reflected under Order 36 rule 2 (a) of the CPR. That a
liquidated demand is in the nature of a debt, a specific sum of 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.
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3. The defendant must have been served with summons and the relevant pleadings in
the manner required for service of summons under O.5…
Valery Alia v John service of sermons was held to be mandatory.
Craig v Kanseen [1943] 1 All ER 108 HELD; that the failure to serve the
summons upon which the order was made was not a mere irregularity, but a defect
which made the order a nullity and therefore, the order must be set aside
4. Even where the summons and pleadings allege to have been served on the
defendant, such service must be evidenced by the filing of an affidavit of service
O.5r16
In Valery Alia v Alionz John; court set aside a judgment obtained when there was no proof
before court that summons together with the plaint had been served upon the defendant. Court
held that In Uganda the requirement to file an affidavit of service upon the court record is a
mandatory requirement. It is a fundamental rule of justice that before anybody can defend
himself or herself, he or she has to be notified of the particulars of the claim against him or
her.
Edison Kanyebwera v Pastori Tumwebaze
HELD; there was no evidence on record that the defendant was served. Order 5, rule 17 of the
C.P.R requires the serving officer, to make an affidavit of service stating the time when and
the manner in which the summons was served and name and address of the person, if any,
identifying the person served and witnessing the delivery of the tender of the summons. The
provisions of this rule is mandatory, it was not complied with in the instant case. What the rule
stipulates about service of summons, applies equally to service of hearing notices. There was
no affidavit of service on the record. The absence of such affidavit leads inevitably to the
conclusion that the defendant was not properly served with the hearing notice before the suit
was heard in his absence. Appeal allowed.
5. The defendant is required by summons issued pursuant to O. 36 r 3 to file an

application for leave to appear and defend, (but not to file a WSD).
Mufumba v Waako HELD; that when the Applicant failed to file for leave to defend, he
locked himself out of the proceedings, so that much as he remained a party to the suit, he could
only be seen but not heard as the proceedings were handled in his absence. Ref: Order 36 r.3
CPR
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 The time within which the defendant is supposed to apply for leave to appear and
defend must have lapsed. The time is not set out in O.36r3 but the specimen summons
in the schedule to the rules indicate the time of ten days…(Form 4 Appendix A)
Uganda Telecom Ltd v Airtel UG Ltd,
Held; “where a judgment is entered before the expiry of the time prescribed in the summon
such a judgment is a nullity. That the ten days prescribed in the summons in summary suit on
plaint is not the practice of the court in summary suits but is made under the rules. That
Appendices to the rules are made by the Committee as part and parcel of the Rules and are
meant to be read together with the Rules. That is why the rules under which the forms are
made are cited therein. For example, as noted in Form 4 above (Order XXXVI, rule 3) is
written immediately below the heading of the form ”Summons in Summary Suit on Plaint”
to indicate that it is made under that order and rule.
6. Where the 10 days lapse and the defendant has not applied for leave to appear and
defend or as thereafter not sought an extension of time subject to proof of service,
the court may be moved to enter a default judgment. O. 36 r3
7. The court can only pass the decree in respect of the sum claimed in the plaint as
liquidated, any interest as pleaded which must equally be liquidated and costs of
the suit.
Sterling Travel And Tour Services Ltd V Millennium Travel And Tours Service Ltd J
Helen Obura held; ’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 courts to try.
The issue of Whether interests are recoverable under Summary proceedings was further
considered in the case of BEGUMISA GEORGE v EAST AFRICAN DEVELOPMENT
BANK by Justice Irene Mulyagonja;
“I reviewed the authorities cited by Mr. Guma, i.e. the decisions in Arjabu Kasule v.
F. T. Kawesa [1957] EA 611 and E. M. Cornwell & Co. Ltd. v. Shantaguari
Dahyabhai Desai (1941) 6 ULR 103. It is true that they reflect the position that a
claim under O.36 should not include interest, except where the document sued upon
includes an agreement on interest. However, the decision in Arjabu Kasule discusses
the question further. Relying on the decision in Uganda Transport Co. Ltd. v. Count
de la Pasture (3) (1954), 21 EACA 163, it was held that:
“… where a plaint endorsed for summary procedure contains claims correctly
endorsed and other claims, the court may, by O.33 rule 3 to rule 7 and 10 (Now Order
36 rule 3 to 7 and 10), deal with the claims correctly specially endorsed as if no other
claim had been included therein and allow the action to proceed as respects the
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residue of the claim, the court having no power under O.33 (Now Order 36) to strike
out any part of the claim but being unable to give summary judgment for any relief not
within the scope of O.33 rule 2 aforesaid.”
 The plaintiff moves court to enter a default judgment by an ordinary letter normally
addressed to the registrar and the registrar has authority to enter a default judgment.
O.50 and Practice Directions No. 1. Of 2002.
 O.50 r2 provides that in uncontested cases and cases in which the parties consent to
judgment being entered in agreed terms, judgment may be entered by the registrar
Pinnacle Projects v Business in Motion

Upon realizing that no application for unconditional leave was filed by 8th June 2010, counsel
for the respondent wrote to the Registrar, High Court, Commercial Division praying that a
default judgment be entered against the applicant under O. 36 r.3(2) of the CPR for payment of
US$200,000 and costs of the suit . The Registrar duly entered default judgment as requested
on the 8th June, 2010. On appeal it was held that in the circumstances, Misc. Application. No.
231 of 2010 which was filed at the Civil Registry on 7th June 2010 and later transferred to the
Commercial Registry and registered as Misc. Application No. 387 of 2010 was filed out of
time and the decree that it sought to set aside was properly passed by the registrar.
 After a court has entered default judgment, a decree is extracted and execution may
then be issued. O.21
Under O.21 r.7(2) it shall be the duty of the party who is successful in the suit in
the High court to prepare without delay a draft decree and submit it for the approval
of the other party to the suit, who shall approve it with or without amendment, or
reject it without undue delay. If the draft is approved by the parties, it shall be
submitted to the registrar, who if he is satisfied that it is drawn up in accordance
with the judgment, shall sign it and seal the decree. If all the parties and the
registrar do not agree to the contents of the decree within such time as the registrar
shall fix, it shall be settled by the judge who pronounced the judgment and the
parties shall be entitled to be heard thereon if they so desire
In Eastern Province Bus Company v G (1971)ULR 87it was held that under O.18, r.7 it is
the duty of the successful party to have in the first instance prepared the draft decree, but if he
fails to do so, the other party who desires to appeal against the judgment will first have to take
steps to have the decree extracted.
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Similarly, in Asad Iweke v Livingstone Oala (1985) HCB; court found that the general duty
of extracting a decree is imposed on the successful party because it is presumed that he will be
anxious to execute the judgment. That a non-successful party anxious to appeal also has a duty
to take necessary and possible steps to prosecute his appeal and that this includes extracting a
decree, which is a prerequisite for filing an appeal.
Default judgment against government.
Rule 6 of the Civil Procedure (Government Proceedings) Rules enacts as follows:
“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 application for such leave shall be made by summons served not less than seven days
before the return day.”
AG V Sengendo
The plaintiff had been attacked, shot and injured by soldiers on a highway a few hours after an
assassination attempt on the then President. Counsel for the defendant had filed no defence but
proposed to take part in the proceedings. When this was refused he relied on r. 6, Civil
Procedure (Government Proceedings) Rules.
Held –
(i) a defendant who files no defence cannot be heard

( ii) judgment in default of pleading by the government is prohibited, but not judgment after
hearing
Agasa Maingi V AG
This is an application by way of chamber summons brought under the provisions of rule 6 of
the Civil Procedure (Government Proceedings) Rules and O.11 r.6 of the Civil Procedure
Rules for orders that: Judgment in default be entered against the respondent/defendant.
HELD; It is clear therefore that the application was brought in court in conformity with rule 6
of the Civil Procedure (Government Proceedings) Rules. The Attorney General though served
did not appear in court. On this ground alone the application would succeed.
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Application for leave to appear and defend under O.36r3,4
 O.36 r3 requires service of summons to be effected on to the defendants by summary

procedure. The defendant upon due service is entitled to apply for leave to appear and
defend implying that he cannot legally file a WSD unless and until permission is so
granted by the court..
 The procedure for applying for leave to appear and defend is by notice of motion
supported by a valid affidavit or affidavits…
Francis Bwengye v Haki Bonera.
The application was filed by Chamber Summons instead of Notice of Motion
HELD; Suffice it to say, first of all, that all applications to the 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 Civil Procedure Rules is very clear on this. Secondly, applications for
leave to defend are provided for under O.36 r.4 of the Civil Procedure Rules. The appellant’s
application was preferred under O.41 rr.1, (2) (1) and 9 which governs applications for
temporary injunctions. Clearly therefore the application was defective on account of being
preferred under a wrong law. However court applied Art 126(2)(e) to cure the defect.
Century Enterprises Ltd v Greenland Bank;
HELD;. The Defendant file an application for leave to appear and defend the suit. The
application takes the form of a Notice of Motion.
 The notice of motion must be filled together with the supporting affidavit or affidavits,
within a prescribed time and in in case of more than one applicant each of the
applicants must file an affidavit in support or one applicant may depone an affidavit on
behalf of the other applicants…
Ready Agro Suppliers and 2 ors v UDB
There was an application seeking leave to defend the main suit supported by the affidavits of
the second and third applicants. The application was challenged on grounds that applicants
no.1 and 3 had not filed applications for leave to appear and defend and judgment ought to be
entered against them. In particular in respect of applicant no. 3 that the affidavit filed by him
was out of time, as it was filed beyond the time allowed for instituting applications for leave to
appear and defend after service of the plaint. It had been filed a month after the application for
leave to appear and defend was filed
HELD; The affidavit of applicant no.3 filed, a month after the application for leave to appear
and defend was filed, was clearly out of time for applicant no.3, to be the supporting affidavit
to his application for leave to appear and defend. The only affidavit filed in time in support of
14
the application is the affidavit of applicant no. 2 sworn on behalf of applicant no.1 and no.2
only. Applicant No.3 has been sued in his personal capacity. In order to be granted leave to
appear and defend he must file an application supported by an affidavit for leave to appear
and defend, if he claims to have a defence to the claim, showing whether the defence alleged
goes to the whole or part of the claim only, under Order 33 Rule 4 of the Civil Procedure
Rules. As he has not done so, nor authorised anyone to do so on his behalf, the application by
applicant no.3 is unsupported by evidence, as it ought to be, and is dismissed forthwith.
 The affidavit in support must be deponed by a person who is in possession of the

material fact supporting the grounds and it should not be tainted with falsehoods
Zimwe Hardware and Constructions Ltd V Barclays Bank UG Ltd
Held; The law governing applications for leave to defend a summary suit is that the applicant
must show by affidavit or otherwise that there is a bonafide triable issue of fact or law. Any
defence raised should be stated with sufficient particulars as to appear genuine and not
generally vague statements denying liability
 The applicant should attach a draft written statement of defence to the affidavit in
support wherein the intended defence to the claim should be specifically set out. The
requirement to attach a draft defence is not mandatory but a matter for prudent practice
intended to enable the court appreciate whether the applicant has a plausible defence.
Sterling Travel and Tour Services Ltd V Millennium Travel and Tours Services Ltd
HELD; Justice Hellen Obura;
I agree with the respondent’s submission that it is not mandatory to attach a written statement
of defence to the application. 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 defence to the application. However, Court has held that it is a
good practice to do so. This is the context in which Tsekooko J. (as he then was) observed in
the case of Acaali Manzi vs Nile Bank Ltd(supra) that when applicants apply for leave to
defend the applicant would do well to attach a draft written statement of defence showing such
a defence. In the premises, I find that failure to attach the draft defence to the summary plaint
does not mean that the applicants have no defence.
Acaali Manzi v Nile Bankt Ltd
NB; In exam he Is opposing the application because in absence of a WSD the application has
no merit and it cannot succeeed’
15
Forum.
 The application for leave to appear and defend must be filed in the court where the
main suit is pending.
Pinnacle Projects Ltd V Business in Motion Cosultance,
The main suit was filed at the Commercial Division but the applicant filed the application for
leave to appear and defend at the Civil Registry. He thus applied to set aside a decree which
had been entered claiming that there was a pending application for leave to appear and defend.
HELD; , that O. 36 r 3(1) requires the defendant who is served with summons under O. 36 to
apply for leave to appear and defend in the same court where the main suit is pending; When
judgment was entered there was no pending application before this Court and so it cannot be
faulted for entering judgment accordingly. In the circumstances, the application was not
properly filed at the High Court Civil Registry when the main suit under which the application
was brought was at the Commercial Division.
The time for filing the application
 O.36r3 does not specify the time to appear and defend but alludes to the time specified
in the summons which is normally 10 days from the date of service.( Form 4 of
Appendix A ) Note; weekends are included except where the last day is a weekend or
a public holiday
Zam Zam noel and Ors v Post Bank
Relying on the decision of Manyindo J. in Republic motors Ltd-Vs-Atlantic Decorators&

General constructions [1982] where it was held that If a defendant wishes to appear and defend
a summary suit he must obtain the leave of court and he must do so within 10 days of
receiving the summons in summary suit. Time is of the essence. In that case, the application
was made 3 days outside the prescribed time of ten days. It was therefore time barred. In the
instant case, the applicant did not apply for leave to appear and defend, until after one month.
His application was time barred and was dismissed for that reason. Rule 11 does not therefore
assist him as it would tantamount to obtaining the order for leave through the backdoor law
Pinnacle Projects Ltd V Business in Motion Consultants
HELD; the application has to be made within ten days from the date of service since time is of
the essence as was held in the case of Republic Motors Ltd-Vs-Atlantic Decorators and
General Construction [1982] HCB 104.
16
Uganda Telecom ltd v Airtel UG ltd,
Counsel for the respondent raised a preliminary objection to an application for leave to defend
a summary suit. Counsel contended that the application for leave to appear and defend was
brought out of time. He submitted that the suit was filed under Order 36 rules 2 and 3 of the
Civil Procedure Rules (CPR) on the 17th December 2010 and summons was served on the
applicant on the 20th December 2010. That the time stated in the summons in summary suit for
filing application for leave to appear and defend was ten days. He submitted that the ten days
expired on the 30th December 2010 and this application was filed on the 17th January 2011. He
further submitted that after the expiry of the ten days, the respondent applied for and obtained
judgment under Order 36 rule 3(2) of the CPR on 11th January 2011 and subsequently, a
decree was issued on the 1st February 2011. That the ten days prescribed in the summons in
summary suit on plaint is the practice of the court in summary suits so that it is handled
expeditiously.
HELD; That under Order 51 rule 4 in the computation of the time for filing of such
application the period between the 24th day of December 2010 and 15th day of January 2011,
both days inclusive should not be reckoned. That, therefore, this application which was filed
on 17th January 2011 was within time. That the ten days prescribed in the summons in
summary suit on plaint is not the practice of the court in summary suits but is made under the
rules. That Appendices to the rules are made by the Committee as part and parcel of the Rules
and are meant to be read together with the Rules. That is why the rules under which the forms
are made are cited therein. For example, as noted in Form 4 above (Order XXXVI, rule 3) is
written immediately below the heading of the form ”Summons in Summary Suit on Plaint”
to indicate that it is made under that order and rule.
 Where the application is filed out of time, it is liable to be struck out and judgment will
be entered against the applicant/defendant; Note; this is not a default judgment but a
final judgment…
Zamzam Noel v Post Bank.
The applicant filed an application for leave to appear and defend the suit out of time without
leave of court on the advice but mistaken belief of his former lawyers that court vacation
between 15-07-2008 and 15-08-2008 are excluded in the computation of time for filing any
pleading. The application was dismissed for being time barred and the applicant applied under
rule 11 to set aside the judgement of court.
HELD;
Relied on the case of Republic Motors Ltd-Vs-Atlantic Decorators& General

constructions [1982] HCB 104, where Manyindo J as he then was held that: If a defendant
wishes to appear and defend a summary suit, he must obtain the leave of court and he must do
so within 10 days of receiving the summons in summary suit. Time is of the essence. In that
17
case, the application was made 3 days outside the prescribed time of ten days. It was therefore
time barred. In the instant case, the applicant did not apply for leave to appear and defend,
until after one month. His application was time barred and was dismissed for that reason. Rule
11 does not therefore assist him as it would tantamount to obtaining the order for leave
through the backdoor law.
GW Wanendeya v Stanbic Bank
Court agreed with counsel for the plaintiff that the cause of action was a continuing cause of
action with regard to the continued detention of the plaintiff’s certificate of title and the
maintenance of a caveat on the said title. This suit in that regard is not time barred.
 Where the applicant is out of time (where the 10 days lapse) the remedy available is an
application for extension of time within which to apply for leave to appear and defend.
Pinnacle Projects Ltd V Business in Motion Consultants
HELD; the application has to be made within ten days from the date of service since time is
of the essence. Time in the instant case started running on the 26th May, 2010 when the
summons in summary suit on plaint was served on the applicant and it lapsed on the 4th of
June 2010. In the circumstances, court found that the Misc. Application which was filed at the
Civil Registry on 7th June 2010 and later transferred to the Commercial Registry and
registered was filed out of time. The applicant should have first applied for extension of time
within which to file the application as it was already out of time. Application dismissed.
 Extension of time is sought under the provision of S.98 of the CPA S.33 of the
Judicature Act and O.51 r6 of the Rules, O36 r 3
 The application is by notice of motion supported by a valid affidavit brought under.
The applicant must plead and prove sufficient cause that prevented him or her from
filing the application within time.
Musa Sbeity and Anor V Akello Joan
Held; ,” the Applicants had the burden to show why their failure to file an application for
Leave to appear and defend the suit in time should be excused. This required them to state a
justifiable reason why they did not take the necessary action.
Venture Communications Ltd v Vertex Prudential Commerce
In a summary suit, the applicant did not file an application for leave to appear and defend but
rather preferred the matter settled out of court. During negotiations the applicant discovered
fraudulent transactions and applied for extension of time to defend the suit. Court allowed the
application for extension of time by noting that there was no excessive delay in bringing the
18
application. And that the applicants engaged in settlement without the plaintiffs applying for
judgment.
 The application for extension of time is filed in the same court where the main suit is
pending. Pinnacle Projects v Business in Motion.
The applicant/defendant has four options, viz;

i. Applying for extension of time and if the order is granted, the applicant will file
an application for leave to appear and defend.
ii. The applicant can also make an omnibus application. This is where you file one
application but seeking a variety of orders. In this case, the applicant may file
one application seeking for extension of time and leave to appear and defend.
This is to avoid a multiplicity of applications.
Magem Enterprises Ltd Vs. Uganda Breweries Ltd
HELD; It is possible and proper to apply for setting aside and staying of execution in one
application demand.
Dr. Ahmed Kisule V Greenland Bank in Liquidation
There was an omni-bus application by notice of motion to be granted extension of time

within which to lodge his application for leave to appeal and also to be granted leave to
appeal.
HELD; court in allowing the omnibus application relied on Magem Entreprises v Uganda
Breweries Ltd C.S No. 462 of 1991 at page 7 to the effect that an omin-bus application of
this nature is possible where the applications are of the same nature and one supersedes the
other. Thus it is for expeditious disposal of matters and for avoidance of multiplicity of
suits.
 Where the application for extension of time is dismissed, the court is required to enter
judgement against the defendant.
Grounds in support of application. O. 36 r 7
 The application will only be granted where the applicant by an affidavit or otherwise
demonstrates to court that he raises serious triable issues of law or fact, meriting
adjudication in a full trial.
 the applicant must demonstrate that his intended defense constitutes a plausible defence
of the claim or part thereof and
 that it’s in the interest of justice that an applicant be given an opportunity to defend so
that they are not condemned unheard.
19
Broadband Company ltd v Joram Mugume,
HELD; the principles for determination to arrive at a decision of whether leave should be
granted to the defendant to appear and a defend a summary suit are; An applicant for leave to
defend a summary suit must demonstrate to court that there is or are issues or questions of fact
or law which are in dispute and which ought to be tried. Where the applicant shows a state of
facts which leads to the inference that at the trial of the action he may be able to establish a
defence to the plaintiff’s claim, he ought not to be debarred of all power to defend the demand
made upon him.
Begumisa George v EADB; Irene Mulyagonja
HELD; Rules have evolved upon which the court makes the determination as to whether the
defendant who seeks leave to defend a suit under summary procedure should be allowed to do
so or not. The first and paramount consideration has to be had to the rules wherein Order 36
rule 7 provides:
“If it appears to the court that any defendant has a good defence to or ought to be permitted
to appear and defend the suit, and that any other defendant has not such defence and ought
not to be permitted to defend, the former may be permitted to appear and defend, and the
plaintiff shall be entitled to issue a decree against the latter, …”
Court then referred to some decisions
One of the earliest decisions that is often cited on this point in East Africa and which
states the test is the decision in Hasmani v. Banque du Congo Belge (1938) 5 EACA
89 at 89, where Sheridan, CJ, in the Court of Appeal for Eastern Africa ruled that if
there is one triable issue contained in the affidavit supporting the application for leave
to appear and defend then the defendant is entitled to have leave to appear and defend
unconditionally. This was followed by another notable decision in Churanjilal & Co.
v. A. H. Adam (1950) 17 EACA, 92. Graham Paul, V-P stated the test thus:
“There is no difficulty about the principles to be applied in deciding this appeal. The
law on the point is clear and only its application to the facts gives any trouble. It is
desirable and important that the time of creditors and of courts should not be wasted
by the investigation of bogus defences. That is one important matter but it is a matter
of adjectival law only, embodied in Rules of Court, and cannot be allowed to prevail
over the fundamental principle that a defendant who has a stateable and argueable
defence must be given an opportunity to state it and argue it before the court. All the
defendant has to show is that there is a definite triable issue of fact or law.”
20
Zimwe Hardware and Constructions Ltd V Barclays Bank UG Ltd
Held; The law governing applications for leave to defend a summary suit is that the applicant
must show by affidavit or otherwise that there is a bonafide triable issue of fact or law. Any
defence raised should be stated with sufficient particulars as to appear genuine and not
generally vague statements denying liability
R.L.Jain v Kasozi G.Michael & Anor ((High Court Miscellaneous Application 585 of
2007)
Held; The Applicants are seeking leave under Order 36 rule 3 and 4 of the CPR to defend the
suit. The law is that the applicant for such leave must show by affidavit or otherwise that there
is a bonafide triable issue of fact or law. Any defence raised should be stated with sufficient
particulars as to appear genuine and not generally vague statements denying liability.
Which test does the court apply in determining an application for leave to appear and defend?
 The applicant will succeed upon proof by affidavit that the issues raised be it of law or
fact are contentious and can only be resolved through a full hearing.
UNRA v Vivo Energy.

Held; The conditions that ought to first be met before leave is granted have long been
settled. In Kotecha Vs Mohammed [2002]1 EA 112, court held that,
“Where a suit is brought under summary procedure on a specially endorsed plaint, the
defendant is granted leave to appear and defend if he was able to show that he had a
good defence on merit, or that there is a difficult point of law involved; or a dispute as
to the facts which ought to be tried; or real dispute as to the amount claimed which
requires taking into account to determine; or any other circumstances showing
reasonable grounds of bonafide defence........”
The facts as set out primarily show that there is a dispute in the facts which is a
substantial condition to necessitate the grant of leave to appear and defend. Secondly,
the applicant firmly denies being indebted to the respondent which in itself is a
condition enough to guarantee the grant of leave to appear and defend.
21
That the issues of interest, fraud, and damages which were raised in the affidavits in
support of the application to defend required a full trial and the applicant was allowed
to file a written statement of defence within ten days from the date of ruling.
 The applicant needs only to show a plausible defense but not a defence that must
succeed. Plausible defense does not mean one that must succeed but one which raises
serious questions of law or fact that raises adjudication in a trial.
Uganda Micro Enterprises Association Ltd anor V The Micro Finance Support Center
Held that
It should be appreciated 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 defence to the claim, the Plaintiff is not entitled to summary
Judgment. See: Maluku Interglobal Trade Agency Ltd –Vs- Bank of Uganda [1985] HCB
65. In this respect, defence on the merits does not mean a defence that must succeed. It means
as Sheridan, J. put it “a triable issue”, that is, an issue which raises a prima facie defence and
which should go for trial for adjudication
 When determining an application for leave to appear and defend the court at that stage
does not extend its inquiry into the merits of the defense but only considers whether the
triable issues of law or fact alleged by the applicant merit adjudication in the full trial.
The reason why the court does not examine the merits of the defense is to avoid court
determining the rights of the defendant before granting such defendant an opportunity
to defend the suit…
Regarding the test a number of authorities are quoted in the case of Begumisa George v
EADB;
Per Lady JUSTICE IRENE MULYAGONJA
The test has evolved over the years. In Uganda, the decision in Maluku Interglobal
Trade Agency Ltd. v. Bank of Uganda [1985] HCB 65, is favoured and it states the
test at page 66 of the Bulletin as follows:-
“Before leave to appear and defend is granted the defendant must show by affidavit or
otherwise that there is a bona fide triable issue of fact or law. When there is a
reasonable ground of defence to the claim, the plaintiff is not entitled to summary
judgment. The defendant is not bound to show a good defence on the merits but should
22
satisfy court that there was an issue or question in dispute which ought to be tried and
the court should not enter upon the trial of the issue disclosed at this stage.”
It is also the position, according to the same decision, that the defence must be stated
with sufficient particularity to appear genuine; general or vague statements denying
liability will not suffice. The principle was re-stated in Abubakar Kato Kasule v.
Tomson Muhwezi [1992-1993] HCB 212 where Kireju, J, (RIP) ruled that under
Order 33 rule 4 (now O.36 rule 4) a defendant who seeks leave to appear and defend is
required to show by affidavit or otherwise that there is a bona fide triable issue of fact
or law. That the applicant is not bound at this stage to show that he has a good defence
on the merits of the case, but ought to satisfy court that there is a prima facie triable
issue in dispute which the court ought to determine between the parties. The court
further ruled that at this stage it was not entitled to enquire into the merits of the issue
raised. In spite of this the court went on to hold:-
“In all applications for leave to appear and defend under Order 36 rules 3 and 4, the
court must study the grounds raised to ascertain whether they raised 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; if the
applicant/defendant has a plausible defence he should be allowed to defend the suit
unconditionally.”
About 6 years later, in Photo Focus (U) Ltd. v. Group Four Security Ltd. C/A Civil
Appeal No. 30 of 2000, (unreported), the Justices of the Court of Appeal seemed to
lower the standard required of a defendant who applies for leave to defend which is
stated in Order 36 rule 3 CPR. It was held, Engwau and Kitumba, JJA, with Okello,
J.A (as he then was) dissenting, that a denial of indebtedness, per se, was a defence that
was good enough for purposes of obtaining leave to appear and defend a suit under
summary procedure. The decision of the court in a suit where the applicant simply
denied that he owed the amount claimed in the plaint was that leave to defend ought to
have been granted to him by the High Court. The court further observed that it was not
incumbent upon the defendant at that stage to show how it is not indebted to the
plaintiff because to do so would have shifted the burden of proof upon it prematurely.
Engwau, JA, was of the view that the burden of proof was upon the plaintiff to show
how it arrived at the figure being claimed. He therefore ruled as follows:-
“It is trite that it is not a requirement of law that the applicant must establish a
genuine defence before leave to appear and defend could be granted. In the instant
case, the applicant had clearly denied being indebted to the respondent in the sum
claimed or at all. In my view, this was a perfectly good and genuine defence for the
appellant to raise against the respondent’s claim. It raised a triable issue of law or fact
and it was not incumbent upon the appellant at that stage to show how it was not
indebted to the respondent.”
Similarly, Kitumba, JA, (as she then was) found and ruled as follows:
“I would like to observe that the appellant categorically denied that it owed to the
respondent the sum of money claimed or at all. I cannot envisage in what clearer terms
other than in such a denial that the appellant would have put its defence.”
Okello, JA, on the other hand, was of the view that the correct position was that which
was stated in Maluku Interglobal (above), so he ruled:-
23
“I agree with the test, set out in Maluku Integlobal Trade Agency Ltd v Bank of
Uganda [1985] HCB 65 that ‘the defence must be stated with sufficient particularity to
appear genuine. General or vague statements denying liability will not suffice.’ Though
this is a High Court decision, it is sound and I respect it. The question is, does the
appellant’s defence that ‘the defendant/applicant is not indebted in the sum claimed or
at all’ pass the above test? My answer is that it does not because it is lacking in
particularity. The affidavit of the appellant’s Managing Director should have
contained sufficient particularity to show why the appellant denies indebtedness to the
respondent. … That is not shifting the burden of proof to the appellant to prove its
defence. It is merely raising not only a clear triable issue but also coating it with
sufficient particularity to make the defence appear genuine. To merely assert a
general, evasive and vague denial as shown above is insufficient. That insufficiency
rendered that defence general, ambiguous, vague and evasive.”
The Court of Appeal seems to have rethought its decision in Photo Focus because 2
years later in Kotecha v. Mohammed [2002] 1 EA 112, Berko, JA, ruled (Okello and
Engwau, JJA, concurring) that:-
“The summary procedure on specially endorsed plaint under Order 36 of our Civil
Procedure Rules is similar to a writ specially endorsed under Order 3, rule 6 (Order
14, rule 1) of the English Rules of the Supreme Court. Therefore English authorities on
that rule are of persuasive authority and provide (a) useful guide. 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; or a real dispute as to the amount
claimed which requires taking an account to determine; or any other circumstances
showing reasonable grounds of a bona fide defence. See Saw v Hakim 5 TLR 72; Ray v
Barker 4 Ex DI 279.” {My Emphasis}
In the instant case, the judge then HELD;

It is therefore still the position of the law in Uganda that an applicant who comes to
court seeking for leave to defend a suit under Order 36 CPR must show that he/she has
a good defence on the merits or that there are circumstances showing reasonable
grounds or a bona fide defence. The defence raised must not be a sham.
Sterling Travel and Tour Services Ltd V Millennium Tour Service Ltd
HELD citing a number of authorities;
Per; LADY JUSTICE HELLEN OBURA
The legal proposition is settled that in an application for leave to appear and defend, the
applicant must prove that there is a bona fide triable issue of fact or law that he will
advance in defence of the suit. In Churanjilal & Co. v. A. H. Adam (1950) 17 EACA 92, the
Court of Appeal for East Africa held that a defendant who has a stateable and arguable defence
must be given the opportunity to state and argue it before court. That decision was followed by
24
the High Court of Uganda in the case of Maluku Interglobal Trade Agency v. Bank of
Uganda (supra) where the principle was concisely stated as follows:-
“Before leave to appear and defend is granted the defendant must show by affidavit
or otherwise that there is a bona fide triable issue of fact or law. When there is a
reasonable ground of defence to the claim, the defendant is not entitled to summary
judgment. The defendant is not bound to show a good defence on the merits but
should satisfy the court that there was an issue or question in dispute which ought to
be tried and the court should not enter upon the trial of the issues disclosed at this
stage.” that ‘the defence must be stated with sufficient particularity to appear
genuine. General or vague statements denying liability will not suffice.
In the case of Maria Odido v 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 the 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 defence and if the applicant has a plausible
defence he should be allowed to defend the suit unconditionally.
All the above authorities were also cited by Justice Hellen Obura in Bitagase & Anor v
Mugambe
Uganda Micro Enterprises Association Ltd And Anor V The Micro Finance Support
Center
Held that
It should be appreciated 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 defence to the claim, the Plaintiff is not entitled to summary
Judgment. See: Maluku Interglobal Trade Agency Ltd –Vs- Bank of Uganda [1985] HCB
65. In this respect, defence on the merits does not mean a defence that must succeed. It means
as Sheridan, J. put it “a triable issue”, that is, an issue which raises a prima facie defence and
which should go for trial for adjudication
Peter Bibangamba v Mungereza
Justice Hellen Obura;
HELD
25
The law governing application for leave to appear and defend a summary suit is now
settled. The applicant/defendant must show by affidavit or otherwise that there is a
bona fide triable issue of fact or law. The applicant is not bound to show a good
defence on the merits of the case but should satisfy court that there is an issue or
question in dispute which the court ought to determine between the parties. This
position of the law was stated in Maluku Interglobal Trade Agency Ltd v Bank of
Uganda [1985] HCB 65 and Kasule v Muhwezi [1992-1993] HCB 212.
In the case of Kotecha v Mohammed [2002] 1EA 112 it was held that where a suit was
brought under summary procedure on a specially endorsed plaint, the defendant is
granted leave to appear if he was able to show that he had a good defence on merit, or
that a difficult point of law is involved; or a dispute as to the facts which ought to be
tried; or a real dispute as to the amount claimed which requires taking an account to
determine; or any other circumstances showing reasonable grounds of a bona fide
defence.
This court is fortified by the decision in Corporate Insurance Co. Ltd v Nyali Beach
Hotel Ltd [1995-1998] EA 7 where the Court of Appeal of Kenya held that leave to
defend will not be given merely because there are several allegations of fact or law
made in the defendant’s affidavit. The allegations are investigated in order to decide
whether leave should be given. As a result of the investigation even if a single defence
is identified or found to be bona fide, unconditional leave should be granted.
In view of the above authorities, the applicant in this case should satisfy court that
there is an issue or question in dispute which this court ought to determine between the
parties.
In UNRA v Vivo Energy, after citing the authorities of Kotecha Vs Mohammed and Maluku
Interglobal Trade Ltd Vs Bank of Uganda , it was held that the issues of interest, fraud, and
damages which were raised in the affidavits in support of the application to defend required a
full trial and the applicant was allowed to file a written statement of defence within ten days
from the date of ruling.
Busingye & Co. Ltd v Muye (MA No. 87 Of 2011) [2012] UGHC 17
26
The Respondent/Plaintiff filed a specially endorsed suit against the Defendant/Applicant for
recovery of land by delivery of vacant possession. The applicant applied to be granted leave to
appear and defend. The applicant/Defendant’s Counsel argued that there has to be a definite
claim for rent by the Plaintiff against the Defendant.
Held;
That before leave to appear and defend is granted, the Defendant must show by affidavit or
otherwise that there is a bona fide triable issue of fact or law. When there is a reasonable
ground of defence to the claim, the Plaintiff is not entitled to summary judgment. The
Defendant is not bound to show a good defence on the merits but should satisfy the court that
there was an issue or question in dispute which ought to be tried and the court should not enter
upon the trial of the issues disclosed at this stage.
In the circumstances of this application, as revealed in the Applicant’s affidavit evidence,
indicate the existence of a bona fide triable issue. The triable issue evolves around the
Applicant/Defendant’s disputing the Respondent’s proprietorship of the freehold out of which
the suit property.
How can the application be contested (application for leave)?
 A plaintiff or respondent is served with the application for leave to appear and defend,
the appropriate recourse to such plaintiff, is;
1. May file an affidavit in reply containing the grounds in opposition to the application
either within 15 days from the date of service of the application or any time before the
hearing date whichever is appropriate.
Madrama J. in Stop & See (U) Ltd vs. Tropical Africa Bank Ltd (supra) stated:
“These pleadings follow the same pattern as that of a plaint and a written statement of
defence. It follows that the same time lines would apply to interlocutory applications. A reply
or defence to an application has to be filed within 15 days. Failure to file within 15 days
would put a defence or affidavit in reply out of the time prescribed by the rules. Once the party
is out of time, he or she needs to seek the leave of court to file the defence or affidavit in reply
outside the prescribed time.”
This was cited with approval in Elias Waziri and Ors V Opportunity Bank Uganda Ltd,
where an affidavit in reply was filed four months after the application was served on the
respondent. It was held that the affidavit in reply in this case was filed way outside the fifteen
days. However, since there was a prayer for extension of time to file a reply, in the interests of
justice, the already filed affidavit was validated.
Sebyala Kiwanuka And Ors V Sendi Edward. In overruling the objection that the affidavit
in reply was filed out of time, it was HELD; that Since the affidavit was filed before hearing
of the application, it cannot be said to have prejudiced the Applicant. If the affidavit
27
complained were to be struck out, the Respondent would then possibly file an application for
extension of time within which to file the affidavit, would result in the multiplicity of
proceedings S.33 Judicature Act was meant to prevent.
2. Where the respondent/plaintiff intends to raise only questions of law relating to the
application before court it may not be necessary to file an affidavit in reply.
Southern Investment ltd v Mukabura foundation
It was observed that for one to say that failure to file an affidavit in reply by the Respondent
means acceptance of the Applicant’s averments is a curious position. It is well settled that it is
always the Applicant to make out his case, and if it does not, his opponent need not file any
affidavit at all.”
Odongkara and others v Kamanda and another [1968] 1 EA 210
By a plaint, the plaintiffs sued a Muluka chief and also the Busoga Government for damages
for false imprisonment. By a notice of motion unsupported by affidavit dated February 6, 1968
the plaintiffs applied to amend the plaint by substituting the Busoga District Administration
“pursuant to the provisions of the Constitution of the Republic of Uganda, 1967”.
Held –
(i) no affidavit in support was necessary as there was no question of evidence, this
being purely a matter of law.
3. The respondent/plaintiff may in appropriate cases consent to the application for leave
to appear and defend rather than opposing it.
Conditional or unconditional leave
 The power to grant an application for leave to appear and defend is discretionally and
exercisable in fitting circumstances.
 The court may grant unconditional leave to appear and defend where it is satisfied that
the applicant/defendant had made the application and that there are serious triable
issues of law or fact
 Where the court is left in doubt as to the merits of the intended defense but is in the
interest of justice less inclined to grant the application, it may do so with conditions
(conditional leave)e.g. by ordering the applicant/defendant to deposit the decretal sum
or part thereof in court or to deposit some form of security covering the decretal sum.
Soroti v sidebar
Tusker Matresses U ltd v Royal Care Pharmaceuticals ltd

28
The respondent sued the applicant and two others by way of a summary suit claiming a total of
UGX 400,000,000= against the defendants as unpaid rental arrears for a specified period. The
applicant filed an application for leave to appear and defend; After finding that there are
triable issues, court granted applicant conditional leave to appear and defend the main suit with
an order that the applicant deposit into Court a sum of UGX 200,000,000= and file its defence
within 15 days from the date of the order
HELD; where the court is doubtful whether the proposed defence is being made in good faith,
it may order the defendant to deposit money in court before leave is granted. Where court
determines that there is a genuine defence either in fact or in law, then the defendant is entitled
to unconditional leave to defend.
In Souza Figuerido & Co Ltd Vs Moorings Hotel Co Ltd (supra) Sir Kenneth O’Connor P
had this to say:-
“The principle on which the court acts is that where the defendant can show by affidavit
that there is a bonafide triable issue, he is to be allowed to defend as to that issue without
condition……………….. A condition of payment into court ought not to be imposed
where a reasonable ground of defence is set up………..”
The above case cited the case of Kundanlal Restaurant v Devshi (1952) 19 EACA 77 which
stated the law as;
“The principle on which the court acts is that where the defendant can show by affidavit that
there is a bona fide triable issue, he is to be allowed to defend as to that issue without
condition A condition of payment into court ought not to be imposed where a reasonable
ground of defence is set up . . . the condition of payment into court, or giving security, is
seldom imposed, and only in cases where the defendant consents, or there is good ground in
the evidence for believing that the defence set up is a sham defence and the master ‘is prepared
very nearly to give judgment for the plaintiff’ in which case only the discretionary power
given by this rule may be exercised. It should not be applied where there is a fair probability of
a defence nor where the practical result of applying it would be unjustly to deprive the
defendant of his defence.”
Setting aside the decree, applying for leave to appear and defend, setting aside the
execution and stay of execution all under O.36 r11.
 Where a decree has been passed against the defendant, such defendant may apply to
court to set aside the decree on only two grounds; that the sermons were not served to
the applicant and, or two; the applicant was prevented by good cause from entering
appearance.
29
Applicability
 This order applies where a decree has been passed against the defendant in default of
appearance arising from a default judgment under O.36 r.3[2]
Uganda Telecom Ltd v Airtel Uganda
HELD; 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. The law is quite
clear and there are many authorities to that effect including the case of Konoweeka
Architecture Painters &Builder Ltd v. Daniel Lincorin Mukasa [1976] HCB 222
Zam Zam Noell v Post Bank
HELD; Rule 11 gives court the discretion to set aside a decree entered against the applicant
under Order 36 if the service was not effective or for any good cause.
It is inconceivable that rule 11 was intended to allow a person where application for
leave to appear and defend a summary suit was dismissed by court, to re-apply to the
same court to set aside the decree and allow the same person to apply for leave to
appear and defend the suit in the same court. This is what the applicant is attempting to
achieve by this application.
Rule 11 was clearly meant for an applicant who did not apply for leave to appear and
defend a suit within the prescribed time and judgment in default of application for
leave was entered against him as a result under O 36 rule 3 in the instant case like the
instant one, where an application for leave to appear and defend was dismissed the only
remedy is in my view an appeal against the dismissal order. Otherwise a person who
has been served with summons in a summary suit and whose application was dismissed
could simply re-apply for leave under rule 11 for any other ‘good cause’
The procedure
 The applicant in an application under O.36 R11 ordinarily files an omnibus application
seeking the following orders.
1. Setting aside of the default judgment in the main suit.
2. Setting aside of the decree passed against the defendant in default of appearance
3. Unconditional leave to appear and defend and in appropriate circumstances setting
aside of execution or stay of execution
4. The application is by notice of motion with a valid affidavit in support.
Magem Enterprises Ltd Vs. Uganda Breweries Ltd
30
HELD; It is possible and proper to apply for setting aside and staying of execution in one
application demand.
Francis W Bwengye v Haki Bonera.
The application in this case was brought by chamber summons instead of notice of
motion and that since O.36 does not provide for the mode of preferring the application, then
under O.52 it should have been by Notice of Motion
In Pinnacle Projects, court was persuaded by the decision in the case of Uganda
Commercial Bank vs. Abaasi Kibirige & Another, Civil Appeal No. 59 of 1991
(Unreported) where the defendants while seeking leave to appear and defend, filed a notice of
motion under O33r11 ( current O.36 r.11) without a supporting affidavit. It was held that there
was no application filed which met the requirements and the Registrar was right to ignore it
and enter judgment in favour of the plaintiff.
The grounds for setting aside the decree under O.36 r11;
 The applicants must prove to court either that the judgment was entered illegally or
such applicant was prevented by sufficient cause or good cause from entering
appearance or that the applicant was not served with summons
Meddie Ddembe v Nalongo Namusisi

Where it was observed that Order 36 rule 11 empowers the court to set aside a decree
passed under 0.36 if the court is satisfied that the service of summons was not effective, or
for any other cause. The court may also stay or set aside the 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. And that a line of authorities
from this court interpreting this rule, has held that in order to allow an application under
this rule the Applicant has to show that there was some reasonable explanation for failing
to defend the suit but also that the application raises triable issue and a plausible defence.
Musa Sbeity and Anor v Akello Joan
As regards “good cause,” the phrase is not defined in the CPR but it is defined in Black’s Law
Dictionary, Seventh Edition, as; “A legally sufficient reason”. 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.
The phrase “sufficient cause” is usually used interchangeably with the phrase “good cause”.
“sufficient reason” must relate to the inability or failure to take the particular step in time.
Some of the grounds or circumstances which may amount to “sufficient cause.” They include
31
mistake by an advocate through negligent, ignorance of procedure by an unrepresented
defendant and illness by a party.
Court further noted that It is now a settled principle of law in our jurisdiction that mistakes of
Counsel, however, negligent should not be visited on a litigant.
In Banco Arabe Espanol vs. Bank of Uganda SCCA No. 8/1998 [1997-2001] UCL 1,Oder,
JSC (RIP), while giving the background to the development of this principle stated that:-
“The question of whether an “oversight”, ‘mistake”, “negligence”, or “error”, as the case

may be, on the part of counsel should be visited on a party the Counsel represents and whether
it constitutes “sufficient reason” or “sufficient cause” justifying sufficient remedies from
courts has been discussed by courts in numerous authorities. Those authorities deal with
different circumstances; and may relate to extension of time for doing a particular act,
frequently in cases where time has run out; some of them concern setting aside a Default
Judgment as in the present case. But they have a common feature whether a party shall, or
shall not, be permanently deprived of the right of putting forward a bona fide claim or defence
by reason of the default of his professional advisor or advisor’s clerk.”
As seen from that background, the rationale behind that principle is that a litigant should not
be permanently deprived of the right of putting forward a bona fide claim or defence by reason
of the default of her professional advisor or advisor’s clerk. This principle was therefore
established in the interest of substantive justice. There are many other authorities in Uganda
where this principle was stated with approval. They include; Hajji Nurdin Matovu vs. Ben
Kiwanuka SCCA No. 12 of 1991 (Unreported), Alexander Jo Okello vs. Kayondo & Co.
Advocates SCCA No. 1 of 1997 (Unreported) and Andrew Bamanya v Shamsherali Zaye
CAC Application No. 70 of 2001, where Mukasa-Kikonyogo, DCJ (as she then was) observed
that mistakes, faults, lapses or dilatory conduct of Counsel should not be visited on the litigant.
In Nicholas Roussos v Gulamhussein Habib Virani & Another, Civil Appeal No.9 of 1993
(SC) (unreported), the Supreme Court laid down some of the grounds or circumstances which
may amount to “sufficient cause.” They include mistake by an advocate through negligent,
ignorance of procedure by an unrepresented defendant and illness by a party.
In the instant case, failure to appear and defend was negligence of counsel which constitutes
sufficient cause.
Pinnacle Projects Ltd v Business In Motion Consultants
The argument of counsel for the applicant in the instant case was that there was already an
application for leave to appear and defend when the decree was passed.
Held that if indeed there was a competent application for leave to appear and defend at the
time the decree was passed, then that would amount to “good cause” that would justify setting
aside the decree.
32
Uganda telecom ltd v Airtel Uganda
Where it was held that Order 36 rule 11 gives this court power and jurisdiction to set aside a
decree for any other good cause. In this case, a judgement which was entered when there was a
subsisting application for leave to appear and defend was set aside as having been entered
illegally.
 It is prudent practice for the applicant also include grounds for leave to appear and
defend in the application.
Bigways Construcion Ltd v Trentyre (U) Ltd
The applicant was sued for Shs.21, 958,000=. It did not seek leave to appear and defend the
suit because in counsel’s own words, the amount “was not disputed as debt due to the
respondent”. The respondent went ahead and obtained a warrant of attachment in which the
amount recoverable was still stated to be Shs.21, 958,000=, plus costs of the suit
HELD; As long as the applicant saw the claim in the plaint, decided not to challenge it,
execution took place, again without the applicant seeking to stay it, I do not see how it can
now be heard to complain that the claim was false. Failure to file a defence raises a
presumption or constructive admission of the claim made in the plaint. The story told by the
plaintiff, in the absence of a defence to contradict it, must be accepted as the truth. From the
facts as stated to Court and from the available records, the applicant would be estopped from
challenging the respondent’s claim. A person who stands by and keeps silence when he
observes another person acting under a misapprehension or mistake, which by speaking out he
could have prevented by showing a true state of affairs, can be estopped from later alleging the
true state of affairs.
 It is equally prudent practice to attach the intended WSD though failure to do so does
not render the application fatally defective
Sterling Travel supra
Held that it is not mandatory to attach a written statement of defence to the application. 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
defence to the application. However, Court has held that it is a good practice to do so. This is
the context in which Tsekooko J. (as he then was) observed in the case of Acaali Manzi vs Nile
Bank Ltd(supra) “…the applicants would do well to attach a written statement of defence
showing such defence.” . In the premises, I find that failure to attach the draft defence to the
summary plaint does not mean that the applicants have no defence.
The grounds in the application are two fold;
33
 The grounds in the application are two fold; The applicant must prove not the only the
grounds for setting aside the decree but also grounds for the grant of unconditional
leave to appear and defend.
Musa Sbeity supra
Taking into account the above explanation of the phrase “good cause,” the Applicants had the
burden to show why their failure to file an application for Leave to appear and defend the suit
in time should be excused. This required them to state a justifiable reason why they did not
take the necessary action. I have carefully perused the Affidavit in support of this Application
and the submission of Counsel for the Applicants but I do not find any cogent or sufficient
reasons advanced by the Applicants for their inaction.
HELD; the principles for determination to arrive at a decision of whether leave should be
granted to the defendant to appear and a defend a summary suit are; An applicant for leave to
defend a summary suit must demonstrate to court that there is or are issues or questions of fact
or law which are in dispute and which ought to be tried. Where the applicant shows a state of
facts which leads to the inference that at the trial of the action he may be able to establish a
defence to the plaintiff’s claim, he ought not to be debarred of all power to defend the demand
made upon him.
Test and threshold.
 The test for the grant of an order for setting aside the decree and granting leave to
appear and defend is whether the applicant was prevented by sufficient cause from
entering appearance (filing an application for leave to appear and defend) and whether
if so granted leave to appear defend, the applicant’s defense raises meritorious triable
issue of law or fact which constitute a plausible defence to the claim.
Kensington Africa ltd v Pankaj Kumar Hemraj Shah
“In exercising discretion as to whether the ex parte judgment should be set aside or
not, where there is a regular judgment, the court will unusually satisfy itself that
there is a defence on the merits before judgment is set aside.”
It is now settled that in an application for leave to appear and defend, the applicant must prove
that there is a bona fide triable issue of fact or law that he will advance in defence of the suit.
In Churanjilal & Co. v. A. H. Adam (1950) 17 EACA 92, the Court of Appeal for East Africa
34
ruled that a defendant who has a stateable and arguable defence must be given the opportunity
to state and argue it before court. That decision was followed by the High Court of Uganda in
the case of Maluku Interglobal Trade Agency v. Bank of Uganda (supra) where the
principle was concisely stated as follows:-
“Before leave to appear and defend is granted the defendant must show by
affidavit or otherwise that there is a bona fide triable issue of fact or law.
When there is a reasonable ground of defence to the claim, the defendant is
not entitled to summary judgment. The defendant is not bound to show a good
defence on the merits but should satisfy the court that there was an issue or
question in dispute which ought to be tried and the court should not enter
upon the trial of the issues disclosed at this stage.”
Mukasa J. applied the above principles in the case of Maria Odido v Barclays Bank of
Uganda Ltd HC Misc. Application No. 645 of 2008. He further observed that at this stage the
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 defence and if the applicant has a plausible
defence he should be allowed to defend the suit unconditionally.
Ali Ndaula v R. L. Jain
HELD; Under the rule a decree may be set aside for either:-
(i) no effective service of the summons or
(ii) other good cause
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 also that there is
merit in the defence or in the case itself. This holding was cited with approval in Senyange Vs
Naks Ltd (1980 Ltd (1980 HCB 30
Stay of execution, setting it aside and an interim order of stay of execution
 Where upon the issuance of a decree, the plaintiff has commenced the process of
execution, it is prudent for the judgment debtor/defendant to apply for stay of
execution pending determination of the main application for setting aside the decree.
 The application for stay is by notice of motion with a valid affidavit brought under S.
98 CPA and Order 36 r 11 of the CPR.
 The applicant in an application for stay must prove the following,
i. That there is a pending application in the same court or in the trial court for setting
aside a decree sought to be executed.
35
ii. The applicant must prove that the pending application is meritorious and if a stay is
not granted the relief sought in the main application will be rendered nugatory.
iii. The applicant must show that there is imminent danger of execution of the decree
sought to be set aside.
Souna Cosmetics Ltd v URA
That in exercising the discretion to prevent an appeal or application from being rendered
nugatory, the court does not consider the merits of the application for a temporary injunction.
What then does not court consider? It is my decision that the court considers whether the
applicant or appellant has a bona fide appeal or application and whether their right to have it
heard would be curtailed if an interim measure of injunction or stay of execution is not
granted. Therefore all the applicants need to prove before the registrar is that there is a bona
fide arguable case for consideration on the merits before the court. That it is necessary to
grant an interim measure of protection to preserve the status quo to prevent the appeal or
main application from been rendered nugatory. The purpose of the interim measure is to
preserve the right of being heard on the appeal or application. Among the sub factors to be
taken into account can be whether such a right to be heard exists
Kisawuzi Henry V Kayondo Moses
HELD; after citing the provisions of Rule 11 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 to be
in the positive, then other good cause has got to be established that would justify the stay of
execution, if any, and the setting aside of the decree.
 The applicant should also apply for an interim order of stay of execution pending the
main determination of the main application for stay.
 The applicant must prove the following.
 That there is a pending application seeking to set aside the decree.
 The applicant has also filed an application for stay of execution of the same decree;
 That the aforementioned applications might take long to be heard and determined
 That in the meantime there is an imminent threat of execution of the same decree
 and that unless an interim order of stay is granted, the aforementioned applications will
be rendered nugatory.
 The application is by notice of motion
HELD; that an application for an interim injunction is not an application on the merits but
meant to preserve the right of appeal or the right of hearing on the merits which right may
36
be curtailed if the status quo is changed. It would be strange for a judge to consider the
grounds for granting an injunction and at the same time after ruling on the same,
consider the merits of the main application on the same grounds. The practice has been that
such interim measures/orders are heard by the Registrar pending the obtaining of a hearing
date before the judge
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 a very limited jurisdiction
which does not deal with the merits of the suit. Hence it is normally handled by the Registrar.
The same time used to argue points on the merits if taken before the trial judge can be used to
hear the main application. The principles for preserving the right of appeal or the rights of
hearing were stated in the case of Wilson V. Church (1879) vol 12 Ch D 454 where it was
held that:
As a matter of practice, where an unsuccessful party is exercising an unrestricted right of
appeal, it is the duty of the court in ordinary cases to make such order for staying proceedings
in the Judgment appealed from as will prevent the appeal if successful from being rendered
nugatory.”
 Where the execution has been completed or partly completed, the applicant may apply
to set aside the execution or to stay completion of the execution.
Remedy where application for leave or setting aside is dimissed.
 Where the application for leave is dismissed, judgement will be entered against the
defendant and the remedy is an appeal.
Francis Bwengye v Haki Bonera.
In the instant case the respondent had brought her claim under O.36 of the Civil Procedure
Rules. The applicant filed Misc. Application No.1008 of 2008 seeking leave to appear and
defend the suit. The Magistrate dismissed the application because the applicant was a lawyer
of high standing in society and he was an author of many legal books. The trial Magistrate
instead dismissed the application on grounds that it cited a wrong law under which it was
being preferred and proceeded to enter judgment for the respondent in the sum claimed in the
plaint.
Held;
As far as the lower court was concerned, the dismissal of the application and the entering of
judgment for the respondent in the sum claimed in the plaint conclusively determined the
rights of the parties with regard to the matters in controversy in the suit. Following that
37
decision, the appellant had only one option: to appeal against both the dismissal of the
application for leave to defend and the resultant judgment in favour of the respondent/plaintiff.
Under Section 220 (1) (a) of the Magistrates Courts Act, Cap.16, an appeal lies from the
decrees or any part of the decrees and from the orders of a Magistrate Grade I to the High
Court. In these circumstances, I have not appreciated learned Counsel’s argument that no
leave was obtained by the appellant before he filed the appeal. None was required.
Zamzam Noel v Post Bank,
HELD;
Rule 11 was clearly meant for an applicant who did not apply for leave to appear and defend a
suit within the prescribed time and judgment in default of application for leave was entered
against him as a result under O 36 rule 3 in the instant case like the instant one, where an
application for leave to appear and defend was dismissed the only remedy is in my view an
appeal against the dismissal order. Otherwise a person who has been served with summons in
a summary suit and whose application was dismissed could simply re-apply for leave under
rule 11 for any other ‘good cause’.
 Where the application for extension of time is dismissed, judgment is entered against
the defendant and the remedy is an appeal.
Zamzam Noel v Post Bank,
HELD;
Where an application for leave to appear and defend was dismissed the only remedy is an
appeal against the dismissal order
 Where an application to set aside the decree is dismissed, the resultant order is
available subject to the grant of leave to appeal.
Niwagaba and 4 ors v Owners of Condominium.
At Trial, the Appellants’ filed an Application No 589 of 2009 seeking for Leave to
defend the suit. However, the Appellants’ failed to enter appearance which led to its
dismissal of the Application on the 13th March, 2012 for want of Prosecution.
Subsequently, the Trial Magistrate entered a Summary Judgment for the Respondent.
The Appellant then filed Miscellaneous Application No. 21 of 2013 under Order 9
Rule 27 and Order 22 Rule 23 of the civil procedure Rules S.I 71-1 in which he sought
Orders to set aside the Summary Judgment which was dismissed by the Court. The
38
Appellants aggrieved with the decision of the Trial Magistrate, preferred this Appeal
against the dismissal of Miscellaneous Application No. 21 of 2013.
Whether the Appellant can appeal as of right?
Held; per HON. LADY JUSTICE ELIZABETH IBANDA NAHAMYA.
Pertaining to the issue of whether the Appellants have a right of Appeal, I would
conclude that this Appeal lies against the dismissal in Miscellaneous Application No.
21 of 2013 which falls within Order 36, rule 11 of the CPR. Hence, the Appellants
have no automatic right of Appeal. (See Attorney General vs. Shah [No.4] [1971] EA
50).
Section 76 of the Civil Procedure Act provides for the particular instances upon which
an appeal shall lay as of right or by leave of Court. Order 44 of the CPR also
enunciates on the orders of Court upon which an Appeal may lie as of right and the
Orders relating to setting aside of an Ex parte Judgment on a Specially Endorsed Plaint
are excluded from the provision.
The order dismissing an application for leave to defend under Summary Suits or Order
36 of C.P.R is not one of the orders set out in order 44, rule 1. Therefore the Appellant
ought to have sought leave to appeal as prescribed under Rules 3 and 4 of this Order. In
the circumstances, I agree with the decision of Court in the case Mugabe vs.
Twinobusingye Civil Appeal No. 050 of 2009, where it was held that the Appeal was
filed in violation of the written law as the Appellant ought to have sought leave to
appeal as prescribed under Rules 3 and 4 of Order 36. In the case of Sango Bay Estates
Ltd v Dresdner Bank A.G [1971] EA 17, it was held that where leave is not sought the
Appeal is rendered incompetent and must be struck out.
She then concluded;
Order 44, rule 1 of the CPR which specifies orders from which Appeals lie as of right
does not include orders made under Order 36 of the CPR. The original suit and
subsequent Miscellaneous Application to set aside the Summary Judgment was
brought under Order 36 of the CPR. Thus decisions made under Order 36 are not
appealable as of right under Order 44 rule 1. Leave ought to be sought under
Order 44, rule 2 to Appeal against a decision made under Order 36. (Emphasis
added)
39
The position of the law is now settled. Where leave is required to file an Appeal and
such leave is not obtained the Appeal filed is incompetent and cannot even be
withdrawn. It must be struck out.
Similarly, I find that in the instant case, the Appellants did not take any genuine steps
to apply for leave either in the Chief Magistrate’s Court or in this Court as required by
the law. This requirement was essential prior to the filing of this Appeal. It therefore
follows that without leave to appeal this Appeal is invalidly before this Court and it is
incompetent. The defect is not curable.
THE LAW THAT RELATES TO AFFIDAVITS
 An affidavit refers to a written statement taken on oath before the commissioner for
oaths or other qualified person to be used as evidence in court proceedings
In Mugema Peter v Mudiobole Abed Nasser, it was held that an affidavit is a

statement/declaration in writing made on oath/affirmation before one having authority to
administer an oath/affirmation.
Law governing affidavits. Order 19 Rule 3(1)
The law that governs affidavits is principally O.19 of the CPR, read together with any other
special legislation which provides for evidence to be adduced by affidavit e.g. the
Parliamentary Elections Act and the rules (specifically rule 15), constitutional petitions under
Art. 137 read together with the Constitutional Petition and Reference Rules
In David Kato Luguza v Evelyn Nakafeero
HELD; It is clear that the 2nd respondent’s averments in paragraph 4 of his affidavit in reply
were based on information and he disclosed the source of the information. This is in line with
Order 19 rule 3(1) of the Civil Procedure Rules which governs affidavits.
Life Insurance Corporation of India v.Panesar, Civil Appeal No. 1 of 1967 where it was
said 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.”
In Kakooza John Baptist v Electoral Commission, court cited the above case of Life
Insurance and HELD that , rules that apply to affidavit evidence do not necessarily apply to
annextures to those affidavits. 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. This
40
cannot always be true of annextures to affidavits. A non-certified DRForm cannot be
validated by the mere fact that it is annexed to an affidavit. A DRForm is a public document
within the meaning of section 73(a) (ii) of the Evidence Act. It requires certification if it is to
be presented as an authentic and valid document in evidence
 An affidavit must contain information within the personal knowledge of the deponent
or affirmat and where such information is from any given source, the source must be
explicitly stated in the affidavit and the basis of belief.
; Order 19 rule 3 (I) of the Civil Procedure Act provides:-
“(i) Affidavits shall be confined to such facts as the deponent is 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.”
Margaret and Joel Kato v Nuulu Nalwonga J.T mwesigye SC, relied on Eric Tibebaga vs.
Fr. Narsensio Begumisa (supra) for the view that a person swearing an affidavit in support of
an application of this nature must have knowledge of the facts involved and failure to uphold
the rule cannot be cured merely by stating the source of the information. The rule on hearsay
evidence in court equally applies to affidavits.
Eseza Namirembe v Musa Kizito
HELD; The affidavit is deficient because it did not set out the deponent’s means of knowledge
or her grounds of belief regarding the matters stated on information and belief, and it did not
distinguish between matters stated on information and belief and matters deposed to from the
deponent’s knowledge
It has been repeatedly held that an affidavit of this kind ought never to be accepted by a Court
as justifying an order based on the so called “facts”. It seems that those concerned with the
drafting of such affidavits have little or no regard to these fundamental requirements. As was
said in Premchand Raichand v. Quarry Services, [1969] E.A. 514, at p. 516, “This is not
merely a matter of form, but goes to the essential value of the affidavit”. The affidavit was thus
of no evidential value.
Uganda Micro Finance Union v Sebuufu Richard’

HELD;
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. The grounds of belief must be stated with sufficient particularity to enable the court
to determine whether it would be safe to act on the deponent’s belief. An affidavit must
disclose the matters based on the deponents knowledge and those based on information and
belief. An affidavit which fails to do so is defective and cannot be relied upon.
41
In MK Financiers Ltd v Shah, it was held that an Affidavit is defective by reason of being
sworn on behalf of others without showing that the deponent had the authority of other.
In Charles Mubiru v Attorney General Constitutional Appeal No. 1 of 2001, the

Constitutional Court of Uganda held, relying on its decision in Ssemogerere & Another v
Attorney General (supra) that an affidavit by the Petitioner which was merely echoing the
information his advocate has given him was not based on his personal knowledge and could
not be relied upon in a Constitutional Petition. An election petition is not an interlocutory
proceedings but a final proceedings, which is aimed at determining the merits of the case.
Therefore affidavits admissible in such proceedings must be based on the deponent’s
knowledge, not on his information and belief.
In Kizza Besigye v Museveni

HELD;
Affidavits based on information and belief should be restricted to interlocutory matters. In
proceedings which finally determine the matter only affidavits based on the deponent’s
knowledge should be acted upon. Quoting Paul Ssemogerere v AG, 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 strictly 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.
On the fate of defective affidavits;

Tsekooko, JSC, in Rdt. Col' Kizza Besigye vs. Yoweri Kaguta Museveni &
the Electoral Commission SC Presidential Election Petition No.1 of 2006
where he 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."
Also Odoki CJ stated; I shall reject those affidavits, which are based on hearsay evidence
only. I shall accept affidavits, which contain both admissible and hearsay evidence but reject
the parts, which are based on hearsay, and only parts which are based on knowledge will be
relied upon.
Circumstances where affidavit evidence is applicable and the practice.
 O.19 r.1=3 set out the parameters for admission of affidavits and in essence empower
a court of law to allow evidence to be adduced by way of affidavit in any appropriate
proceeding where the nature of proceedings and pleadings requires evidence to be
adduced as such.
Mugema Peter v Mudiobole Abed Nasser
42
 Affidavit evidence may be used in ordinary proceedings with leave of court and in
support of any pleading which by the relevant rules is required to be supported by an
affidavit. This includes notice of motion, chamber summons, specially endorsed plaint,
originating summons and petitions.
 The court may in ordinary proceedings, if so moved by a party, allow evidence by

affidavit of a witness whose presence may not be easily secured in court.
Thornhill v Islay Thornhill and Another[1965] 1 EA 268
In an undefended petition on the ground of the respondent’s adultery the petitioner applied
under O. 17 r. 1 of the Civil Procedure Rules for an order that the evidence of a witness who
had obtained a confession statement from the respondent be given on affidavit to save the cost
and inconvenience involved in bringing the witness to Uganda from the United Kingdom.
HELD;
That in Uganda the proviso to r. 1 of O. 17 (now 19) is one of the guiding factors which should
influence a court in deciding whether it should grant an application to lead evidence on
affidavit or not. In other words, if there is no application from the opposite party to be given an
opportunity to cross-examine a witness or if the court does not so direct, then, the court is
entitled to exercise its discretion in the matter, and the discretion, of course, should be
exercised judicially.
On appeal evidence by affidavits was allowed given that bringing someone from the United
Kingdom would cause so much inconveniences
 A witness who has deponed an affidavit, may with leave of court be cross examined on
the contents therein to verify the authenticity, accuracy of contradictions there in or to
discredit the deponents evidence
 The party intending to cross examine a deponent must notify court and the adversary
party in advance so that the witness is summoned by court for that purpose
In Mugema Peter v Mudiobole Abed Nasser,
HELD; With leave of court, a 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.
An affidavit is a statement/declaration in writing made on oath/affirmation before one having

authority to administer an oath/affirmation. It is made ex-parte, unlike evidence given orally
in open court in the personal direction and superintendence of a judge. While the opposite
party has opportunity to cross-examine the one giving oral evidence, in case of an affidavit, the
deponent to it can only be cross-examined on the contents of an affidavit after the affidavit has
43
been deponed to, filed in court or in the cause, and usually with the permission of the court or
whoever is presiding over the cause.
Mulowooza & Bros. v N. Shah & Co…if you want to seek leave to examine, you notify court
and opposing counsel
 In election petitions, it is a right to cross examine the deponents. You simply need to
state that you intend to do so at the scheduling.
 However where a person was notified that cross examination would be conducted upon
him and does not appear then the affidavit will be struck out.
The types of affidavits.
1. An affidavit in support: This means an affidavit filed together with the pleading and
constituting evidence in support of the grounds set out in the pleading.
Akugizibwe v Muhumuza. Held; not all affidavits intended to be relied on by the

applicant must be filed within the prescribed time except an accompanying affidavit(s)
which must be filed together with the petition and other evidential affidavits can be filed
thereafter.
 The affidavit in support must be filed together with the pleading that it supports.
Ready Agro Suppliers ltd v UDB
HELD; Order 36 Rule 4 of the Civil Procedure Rules sets out what applicants must do, if they
seek leave to appear and defend. It provides in part,
“An application by a defendant served with a summons in Form 4 of Appendix A for leave to
appear and defend the suit shall 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.......” The foregoing provisions are clear in what is demanded of the defendant. He/She
must state by way of affidavit whether the defence alleged goes to the whole or to part only of
the plaintiff’s claim, and if only part, which part of the plaintiff’s claim
Southern Investments ltd v Mukabira Foundation Investments “
HELD; Order 36 of our Rules allows a Plaintiff to institute classified suits by presenting a
plaint in the prescribed form endorsed “Summary Procedure Order 36’ accompanied by an
affidavit verifying the cause of action and stating that in his belief, there is no defence to the
suit. Upon filing the suit, the Court serves the summons on the Defendant and the Defendant
does not appear and defend the suit directly like in ordinary suits. The Defendant must first
44
apply for leave to appear and defend the suit from Court by an application supported by an
affidavit stating the nature of defence. This application and the affidavit are served on the
Plaintiff (See Order 33 r 2, 3 and 4). The Practice and indeed the law is, applications for leave
to appear and defend are brought by Notice of Motion under 048 r 1, since Order 33 does not
prescribe the procedure.
Nyakana & Sons Ltd v Kobusingye & 16 Ors (M.A. NO. 13 OF 2017)
Court noted that counsel for the applicant submission that he has filed a substantive
application for stay of execution in this Court was not supported by any evidence. It could
have been proper to attach this pending substantive application (if any) on the affidavit in
support of the application. In the circumstances, the Court is not able to ascertain whether
there is a pending substantive application for stay of execution or not. The Notice of Motion
also stated that that the application is supported by an affidavit deponed by Sam Phiri.
However, no such affidavit was attached. Rather the applicant instead filed an affidavit in
support, deponed by Kate Nyakana ‘in support of an application for stay of execution!’ It
therefore follows that the application did not have an affidavit in support and such an error
could not be overlooked basing on Article 126 (2) (e) of the Constitution as counsel had
suggested.
 Whereas the affidavit in support must be filed together with the pleading in support its
not a mandatory requirement that it must bear the same date as that of the pleading.
Eng Yorokam Katwiremu v Elijah Mushemeza HELD; Where the (notice of motion)
application and its accompanying affidavit bear different dates, it does not vitiate the
application when the application and affidavit are filed in court on the same day.
2. An affidavit in reply.
 This is filed by the respondent controverting the averments of facts contained in the
affidavit in support and is filed as of right.
Southern Investments ltd v Mukabira Foundation Investments “
HELD; , that an affidavit in reply is permissible in an application for leave to appear and
defend a summary suit and has been the practice in our Courts. No leave of the Court is
required. Once a Plaintiff has filed a suit under 0.36 supported by an affidavit, and after the
summons have been served on the Defendant and the Defendant has applied for leave to
appear and defend, the Plaintiff has no right to file a supplementary affidavit to the main suit.
The Plaintiff can only file an affidavit in reply to the points raised by the Defendant’s affidavit
in the application for leave to appear and defend the suit
45
 Where no affidavit in reply is filed, the implication is that the averments in the affidavit
in support and the pleading stand unchallenged.
Energo Projekt Ltd v Brig. Kasirye Ggwanga
Held;. From the said affidavit of Aata Stephen, both respondents refused to file affidavits in
reply. In such scenarios, the parties are presumed to have conceded to the application. In the
case of; Samwiri Mussa vs Rose Achen (1978) HCB 297, Ntabgoba Ag. J. (as he then
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.’
Dr. Bwogi Kanyerezi v B.O.G Rubaga Girls’ School
In that application the Respondent did not file any affidavit in Reply. Counsel for the
Applicant then contended during his submissions that the facts deposed to by the Applicants
counsel stood unchallenged in the absence of an affidavit in reply.
Held; That failure to file an affidavit in reply by the Respondent means acceptance of the
Applicant’s averments is a curious position. It is well settled that it is always the Applicant to
make out is case, and if it does not, his opponent need not file any affidavit at all.”
3. An affidavit in rejoinder.
This is filed by or on behalf of the applicant to controvert or clarify any allegations of fact
contained in the affidavit in reply. It is also automatic, no leave of court is needed.
Jane Lugolobi and ors v Gerald Segirinya; HELD Failure to file an affidavit in re joinder
means that you have accepted everything in the affidavit in reply.
4. The supplementary affidavit.

 This is filed subsequent to the initial affidavit, i.e. it is additional in content to the
contents of the initial affidavit. This is normally filed to supplement or clarify or add
any relevant facts to the principle affidavit whether in support or reply.
 A supplementary affidavit ordinarily requires leave of court save where the initial
affidavit had not yet been served on the adversary party.
Samuel Mayanja v URA .
The applicant filed on the day of the hearing of the application, an affidavit he entitled
‘Affidavit In Rejoinder’, in which he repeated the matters already in his earlier affidavit. Mr.
46
Muliisa objected to the court having regard both to the affidavit, as it had been filed without
leave of court .
HELD; Where an applicant files an application under Order 52, such applicant is required
under Order 52 Rule 3 of the Civil Procedure Rules, to attach an affidavit or affidavits to the
notice of motion. The rule states in part, ‘where any motion is grounded on evidence by
affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion.’
The rule does not envisage any further affidavits to be filed by the applicant. Where the
applicant wants to file a further affidavit, he ought in my view, to seek the leave of the
court, otherwise the proceedings may turn simply into an unregulated game of ‘ping
pong’. As the affidavit was filed without leave of the court, and it was objected to by the
respondent, I shall not have regard to the same.
 A supplementary affidavit can only support an initial affidavit on record if the initial
affidavit is valid; where the initial affidavit is struck out the supplementary affidavit
collapses.
Jayanth Amratlal and anor v Prime Finance ltd;
HELD; Where there is no valid affidavit in support of an application on court record, an

applicant can’t file a supplementary affidavit for there would be nothing to supplement by the
supplementary affidavit
Kakoza Jonathan and anor v Kasalla Growers Co-operative Society J. Tumwesigye JSC,
in an affidavit in reply the deponent described himself as female yet he was male. Court
refused to strike out an affidavit as the deponent had sworn 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.
 Where the filing of other affidavits i.e. like affidavits in rebuttal is with leave of
court, the affidavits must be filed within the time prescribed by court.
Kakande Keneth Paul V Ruhindi Fred And Anor
That the petitioner was instructed by court to file his affidavits on 1/8/2006 and serve by
2/8/2006 at 5.00 p.m. According to the affidavit of the process server he served the 1st
respondent on 3/8/2006 at 1.16 p.m. and the 2nd respondent was served at 3.00 p.m.
HELD;
Both services were outside the time stipulated by court. It is immaterial that service
was outside the stipulated time by a few hours or that in the circumstances prevailing it
was difficult to comply with the court order as the affidavit of the process server seems
47
to suggest. In such circumstances the petitioner should have applied to court for
expansion of the time instead of trying to ‘force’ service on the respondents. The
purported service of the affidavits on the two respondents was not proper and the fate
of these affidavits is that they will not be admitted. They are excluded from the record
of this petition.
That none compliance with a court order setting down the time when the affidavits
should have been filed negates the service. That court can allow filing of affidavits
even as the trial of the case proceeds but the bulk of the affidavits should be filed at the
time of filing the petition and others would be additional to the bulk of the evidence.
That the applicant failed to file affidavits in support of the petition for the last four
months and court was not inclined to give the petitioner more time to adduce evidence.
Procedure of deponing an affidavit including those by illiterates
 The affidavit must be written in the English language. And where the deponent is
illiterate, the contents must be translated and explained to such deponent in a
language he understands well and a certificate of translation must appear at the jurat
[last part] of the translation. The requirement stems from S. 2 and 3 of the Illiterates
Protection Act.
Kasala Growers Corp Society V Kakoza Jonathan CIVIL APPLICATION NO. 19 OF

2010
The first point challenges the affidavit of Bumbakali Sande Sworn in Support of the
application. Mrs. Murangira kasande contended that the said affidavit is incurably defective
for failure to indicate at the bottom thereof, that the contents thereof were interpreted to the
deponent in the language he understands and that he in fact understood them or appeared to
have understood them.
Held;
Section 3 of the Illiterate Protection Act (Cap) 78 of the Laws of Uganda 2000, 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.
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 to
48
state therein that it was read over and explained to him or her who appeared to have
understood it.
Per Okello JSC;
I accept Mrs. Murangira Kasande’s argument that Mr. Bumbakali Sande cannot own
the contents of the affidavits since it is not shown that they were explained to him and
that he understood them.
In Ngoma-Ngime - vs - Electoral Commission and Hon. Winnie Byanyima, Election

Petition Appeal No. 11 of 2002, the Court of Appeal confirmed the rejection by the
trial High Court judge of an affidavit by an illiterate deponent which did not comply
with the provision of that Act.
I agree with and endorse that decision as the correct one. The Act was intended to
protect illiterate persons and the provision is couched in mandatory terms. Failure to
comply with it must render the document inadmissible.
Likewise in the instant case, failure of the said Charles Kaddu to write his full name
and address and to state in the document that the same was read over and explained to
Bumbakali Sande in the language he understands and that he appeared to have
understood it rendered the affidavit inadmissible.
 However, where there is no certificate of translation but the commissioner who

commissioned an affidavit by the illiterate is summoned before court for cross
examination and testifies that he complied with the statutory requirements by
translating the contents of the affidavit to the deponent, absence of certificate of
translation is rendered a mere technicality.
The validity of affidavits were challenged on ground that there were no certificates of
translation on them and that the deponents had not been identified by the commissioner for
oaths.
49
Court noted that the evidence of the commissioner for oaths, Oluge Richard, who handled the
affidavits, was to the effect that he saw a number of receipts of payment of fees on these
affidavits, and that, though not bearing certificates of translation, the contents, in the affidavits
were first translated into Lusoga before the deponent signed. He also administered an
oath/affirmation to each deponent before signing.
Court was thus satisfied on the review and re-appraisal of the relevant evidence that the
affidavits were paid for on being lodged and that the contents thereof were translated into
Lusoga to the deponents before each one signed. The rest of the complaints such as lack of a
jurat or certificates of translations are procedural transgressions and cannot prevent this court
from administering substantive justice. That the affidavits in question constituted valid
evidence and the trial judge was right to rely on those affidavits that he chose to rely on to
reach the conclusions that he arrived at.
 The affidavit must be signed by the deponent in the presence of and before the
commissioner for oath. Where an affidavit is signed “deponent” that affidavit is not
signed.
Mefika Matsebula v Mandra Ngwenya
The Applicant raised the issue that the Respondents original affidavit did not bear the
Respondent’s signature but that of the Commissioner of Oaths who is supposed to have
administered the oath to the Respondent
HELD’; that the form of oath on the Respondent’s affidavit is correct, the defect lies in
the fact that the deponent did not sign it and the Commissioner of Oaths signed it in the
deponent’s absence. In the premises court excluded the unsigned affidavit.
 A person deponing an affidavit must physically appear before the commissioner for
oath and must take an oath before signing the affidavit..
The Supreme Court in Kakooza John Baptist Vs The Electoral Commission and Anthony
Yiga upheld the decision of both the High Court and Court of Appeal to reject the affidavit of
a deponent who had, explained during cross examination as to how he had deponed to an
affidavit thus “I read through the affidavit, signed it before I sent it to the Commissioner.”
Per Bart M. Katureebe

The appellant who testified that he is a lawyer and a commissioner for Oaths, swore an
affidavit in rejoinder which was rejected by the court because apparently he had not
50
appeared before the commissioner for oaths. He had signed the affidavit in Kampala
and, in his own evidence, sent it to the commissioner for oaths for commissioning. It
turned out that it was then commissioned in Masaka.
In effect the commissioner for oath did not administer the oaths and see the deponent
signing the affidavit. Section 6 of the Oaths Act states:-
“Every commissioner for oaths or notary public before whom
any oath or affidavit is taken or made under this Act shall state
truly in the jurat or attestation at what place and on what date
the oath or affidavit is taken or made.” (emphasis added).
The practice where a deponent of an affidavit signs and forwards the affidavit to a
commissioner for oaths without him being present is, in my view, a blantant
violation of the law regarding making affidavits and must not be condoned in
anyway. The deponent of an affidavit must take oath and sign before the commissioner
for oaths as required by law. A commissioner who commissions an affidavit without
seeing the deponent cannot say that the affidavit was taken or made before him or her
nor can he state truly in the jurat or attestation at what place or time the affidavit was
taken or made. Equally the deponent cannot claim to have taken or made the affidavit
before the commissioner for oaths. Surely the appellant as an advocate and
commissioner for oaths ought to know better. This ground is totally without merit and
the courts below dealt with it most appropriately and correctly, and it must fail
In Mugema Peter v Mudiobole Abed Nasser,
The learned trial judge, on perusing the affidavit of Rev. Fr. Ndanda found that it had been
commissioned by one NOAH EDWARD MWESIGWA, an advocate and a commissioner for
oaths, and not counsel Thomas Ochaya. He therefore found that the affidavit had not been
legally commissioned and he rejected the same and struck it off the record.
On appeal HELD; Section 5 of the Commissioners for Oaths (Advocates) Act, cap.5, and
section 6 of the Oaths Act, cap.19 and Rule 7 of the Commissioners for Oaths Rules require a
deponent of an affidavit to personally appear and sign the affidavit before the Commissioner
for Oaths and swear by saying or repeating after the commissioner administering the oath the
words prescribed by the law. The place and date of attestation must also be stated in the
affidavit. Before signing, the commissioner must ensure and satisfy him/herself that the
person signing is the one who is stated in the affidavit and that the contents in the affidavit are
of that person’s own knowledge. Where the same are based on information or some other
51
sources, then the grounds of belief and the sources of information must be disclosed. The
commissioner must be satisfied, in all the circumstances that the deponent understands fully
what he/she is deponing to. Court thus found that on the basis of the evidence and thev law
before it, the trial judge was right in rejecting and striking off the affidavit of Rev. Fr. Ndanda.
Affidavits deponed in a representative capacity.
 An affidavit must be deponed in person by the deponent and where it is deponed in a

representative capacity, the person deponing the affidavit must indicate the authority
to represent others, which authority must be annexed.
Ready Agro Suppliers v Uganda Development Bank.
There were three applicants and counsel possible to gather from the affidavit of Mr. Wilson
Ogola Olendo that it was sworn on behalf of three applicants. Court found that applicant No.2
had deponed the affidavit as a director of the 1st Applicant herein,
Held; No where in the body of that affidavit is there any indication that it is sworn on behalf of
applicant no.3. Applicant No.2 had sufficient authority for the applicant no.1, which is a body
corporate, and can only act through its natural officers. However, clearly at the time of filing
and presenting this application, there was no authority claimed by applicant no.2 to act for
applicant no.3. Neither is there any such authority claimed subsequently. It would follow from
the foregoing that application for applicant no.3 is not supported by an affidavit.
Lena Nakalema v Mucunguzi Myers.
At the commencement of hearing the application Mr. Abomugisha Innocent, Counsel for the
Respondent, raised a preliminary point of law to the effect the affidavit in support of the
application is fundamentally defective and cannot support the application. He pointed out that
in paragraph 2 thereof, the deponent swears that she is authorised by the other two Applicants
to swear on their behalf, but that there is no proof of the authority or representative order of
court, or Power of Attorney attached. That in absence of the authority the affidavit becomes
defective and cannot support the application.
Held;
Order 1 r.12 (I) CPR provides that;

“Where there’s more plaintiffs than one any one or more of them may be authorised
by any other of them to appear, plead or act for that other in any proceedings, and in
like manner, where there are more defendants than one, any one or more of them
52
may be authorised by any other of them to appear, plead or act for that other in any
proceedings.
Sub -rule (2) (Supra) is mandatory and provides that;
“The authority shall be in writing signed by the party giving it and shall be filed in
the case.”
In paragraph 2 of Lena Nakalema Binaisa’s affidavit in support of the application, she swears
that she has been authorised by 2nd and 3rd Applicants and swears the affidavit on their behalf.
However, no such authority is attached as required by the mandatory provisions of sub -rule
2(supra).
Whether it be a representative action under O.1 rr.10(2)and.13 CPR or suit by a

recognised agent under O.3 r.2 (a) CPR) or by order of court, the person swearing on
behalf of the others ought to have their authority in writing which must be attached as
evidence and filed on the court record. Otherwise there would be no proof that the
person purporting to swear on behalf of the others has their express authority.
This court has held before in the authority cited of Taremwa Kamishana Tomas v. Attorney
General (supra) and Vincent Kafero & 11 O’rs v. Attorney General, H.C Misc Appl. No.
048 of 2012, and most recently in Mukuye & 106 O’rs v Madhvani Group Ltd., Misc.
Application No.0821 of 2013 (Arising out of CS No.0615 of 2012) relying on the case of
Makerere University v. St Mark Education Institute & O’rs, HC Civ. Suit No.378 of 1993,
that an affidavit is defective by reason of being sworn on behalf of another without showing
that the deponent had the authority of the other. In this case the affidavit is incurably defective
for non - compliance with the requirements of the law. It cannot support the application which
seeks to add the other Applicants. The application is dismissed with costs.
 Where the deponent proceeds under a representative order pursuant to O 1 r 8, there

is no requirement for any additional authority from those represented.
Taremwa Kamishani v Attorney General.

At the commencement of the hearing Mr. Ndibarema Mwebaze, Counsel for the 1st
Respondent, raised two preliminary objections. Firstly, that in this suit a representative
order was obtained for nine people to represent numerous others, but only two
affidavits, of the 8th and 9th Applicants, have been filed in support of the application.
53
That the two are not competent to swear on behalf of the rest because the representative
order is in respect of nine.
Whether the 8th and 9th Applicants have capacity/authority to swear on behalf of the rest
named in the representative order and the other 5000.
Held;
The reading of O. 1 r 8 clearly shows that in a representative suit, what is required as authority
is an order of court for one or more persons to sue or defend on behalf of all in the same
interest. The provision has no requirement that the rest or all on whose behalf the
representative action is taken should give permission or authority to the representative.
Authority of such a representative is directly derived from the order by the court, and the
parties so represented need not to give any further authority.
The judge then distinguished the cases of Makere University v. St Mark Education Institute
(supra); and Edirisa Mutaasa & A’ nor v. IGG & Lyantonde D.C (supra). In the former, the
affidavit was defective by reason of being sworn on behalf of another without showing that he
had the authority of the other. The applicants were joined as co-defendants but there was no
representative order. Had there been one, I believe the learned trial judge would have held
otherwise. In the latter case, one of the objections raised, which is related to the instant case,
was raised by the same counsel now representing the 1st Respondent. It was that the applicant
could not affirm to an affidavit on behalf of the other applicants when it was not a
representative suit. Clearly, the objection was raised out of the recognition that a representative
order is sufficient authority for a party to swear on his/her own behalf and on behalf of the
others.
He thus expressly stated the rule as follows.
Per BASHAIJA K. ANDREW
Let me state clearly that where the party obtains a representative order it is sufficient
authority to represent himself/ herself and others in the same interest and he or she can
swear an affidavit on his or her own behalf and on behalf of the others represented.
Conversely, where a party swears an affidavit on his or her own behalf and on behalf of
the others without the others’ authority when it is not a representative suit, the affidavit
becomes defective for want of authority.
54
A court order to a party in a representative suit is a mandate for the party to represent
itself and the others even without having to seek further authority from the others
represented. But where there is no court order and a party swears affidavit on his/ her
own behalf and on behalf of others, there is need to obtain the others’ authority to
prove the capacity in which he or she swears the affidavit.
Requirement to state date and place of deponing an affidavit and effect of non
compliance.
 It is a requirement of the law that the affidavit should indicate the place and the date
on which it is deponed. Section 6 of the Oaths Act states:-
“Every commissioner for oaths or notary public before whom any oath or
affidavit is taken or made under this Act shall state truly in the jurat or
attestation at what place and on what date the oath or affidavit is taken or
made.”
 The question is never the less whether failure to do so renders the affidavit incurably
defective or it can be saved by Art 126[2]e. Failure to indicate the place where the
affidavit was deponed does not render the affidavit fatally defective as long as the
deponent appeared before the commissioner for oaths.
Hon Sekikubo V Hon Salleh Kamba And Ors the affidavit did not state the place and the
deponent was not cross examined. Court distinguished Kasaala Growers and HELD; “the
difference in place where the affidavit was signed does not matter as long as one appeared
before a commissioner for Oath”
Gordon Sentiba and Ors v IGG;.
The complaint by the appellant’s counsel is that the application could not be sustained because
it was based on defective affidavits. Counsel contended that the main affidavit of Hon Justice
Faith Mwondha, did not show in the jurat where it was sworn.
Held; Counsel for the appellants has correctly stated that section 6 of the Oaths Act, requires
the Commissioner for Oaths to state in the jurat at what place and date when the affidavit is
taken or sworn. There is no place stated in the jurat in the affidavit of Lady Justice Mwondha
of the 14th February 2007. The learned trial judge did not find that to be a fatal defect because
there were sufficient particulars in the affidavit itself to show that it was drafted at Kampala.
The judge observed that there is no penalty provided for non compliance with section 6 of the
Oaths Act.
On Appeal, the Court of Appeal agreed with the trial judge and added that failure to state in
the jurat the place at which, the affidavit was sworn, can be ascertained from the body of the
55
affidavit is a mere technicality. Such a failure must not deter court from administering
substantive justice as provided by Article 126(2) (e) of the Constitution.
 However where a wrong place is indicated as the place where the affidavit was
deponed from but the deponent clarifies that he duly appeared before the
commissioner for oath, the indication of a wrong place is a mere technicality.
Mwiru Paul v Hon Igeme Nathan HELD; “indicating a wrong place where the deponent
appeared before a commissioner is a minor technicality”
Mbayo Jacob v Electoral Commission “Putting a box number of Nakivubo instead of Mbale
according to court of appeal does not render the affidavit defective”
Failure to state the date
 Failure to state a date is not fatal, if indeed the deponent appeared before a
commissioner for oaths.
Saggu v Roadmaster Cycles (U) Ltd [2002] 1 EA 258 Held; 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(e) of the Constitution (1995). A judge has power to order that an undated affidavit
be dated in court or that the affidavit be resworn and may penalize the offending party in costs
It is also a requirement that the affidavit must indicate the place where it was deponed.
Commissioning of affidavits and the legal implications
 It is a mandatory requirement for an affidavit to be commissioned implying that the

failure to commission an affidavit renders it incurably defective. Commissioning
means there is a stamp and signature of the commissioner.
AG v APKM Lutaaya; The supporting affidavit by the respondent was not sworn.
Court consequently ruled that as the application was not supported by a valid affidavit, it was
incompetent and struck it off with costs
 The affidavit must be commissioned by a commissioner for oaths in the presence of

the deponent who must sign before that commissioner.
In Soroti Joint Medical Services Limitedversus V Sino Africa Medicines And Health Ltd,
An application was struck off on the ground that the affidavit was not commissioned as
required by law. That it cannot be asserted that the affidavit was commissioned when there
was no signature of the Commissioner, when it was not dated nor was there a stamp of the
Commissioner when the applicant’s application was struck out.
Kakooza John Baptist Vs The Electoral Commission and Anthony Yiga
56
Per Bart M. Katureebe
HLED; The practice where a deponent of an affidavit signs and forwards the affidavit to a
commissioner for oaths without him being present is, in my view, a blantant violation of the
law regarding making affidavits and must not be condoned in anyway. The deponent of an
affidavit must take oath and sign before the commissioner for oaths as required by law. A
commissioner who commissions an affidavit without seeing the deponent cannot say that the
affidavit was taken or made before him, or her nor can he state truly in the jurat or attestation
at what place or time the affidavit was taken or made. Equally the deponent cannot claim to
have taken or made the affidavit before the commissioner for oaths.
Signature by deponent
Mohammed Majyambere V Bhakresa Khalil
In the instant case, the deponent of the affidavit in support of the appeal neither signed the
affidavit nor appeared before the commissioner for oaths who commissioned it. His signature
was either photocopied or scanned from a different document and “planted” on the affidavit. I
have carefully looked at the copy on the court record and as conceded to by counsel for the
appellant, there is no copy that bears the original signature. This, in my view, is double tragedy
because it also shows dishonesty in the entire process. It means that the person who is alleged
to be the deponent of the affidavit does not even know its contents let alone seeing and signing
it. In conclusion, I find that the affidavit in support of this appeal is incurably defective.
 The person commissioning the affidavit must be qualified under the law to administer
an oath.
 The person who administers an oath must be qualified and competent to do so and
these include;
- A commissioner for oath [an advocate certified as such
- A magistrate
- A registrar of the high court even supreme court and a Justice of Peace….
Otim George William Ebil Fred
ISSUES; . The first is whether an advocate who has been appointed as commissioner for oaths
under the provisions of S.2 of the Commissioner for Oaths (Advocates) Act can continue to
serve as a Commissioner for Oaths after his/her certificate has expired. The second issue is
what is the effect of an oath or affidavit taken before a commissioner for oaths who is an
advocate and whose practicing certificate had expired at the time he/she administered the
oath.
57
Thirdly, what is the effect of a Magistrate who administered an oath but did not write his
names in full.
HELD;
(1) Under the Commissioner for oaths (Advocates) Act Cap.5, the Chief Justice appoints
practicing advocates who have practiced for not less than 2 years 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. This appointment is published in the Gazette. Each
commission terminates forthwith on the holder thereof ceasing to practice as an advocate. (See
SI of Cap.5).
For an advocate to practise law, he/she must have a valid practising certificate
(S.11 Advocates Act). It is on this basis therefore that an advocate can continue to be a
Commissioner for Oaths. The commission granted to an advocate under the Act goes with a
practising certificate. Once an advocate has ceased to practise as such the Commission also
ceases. Therefore, it can be stated that an advocate whose practising certificate has expired
cannot legally continue to administer an oath to anybody since his/her practising certificate is
the basis upon which the Commissioner for oaths operates.
(2) Regarding the effect on the validity of an affidavit commissioned or documents filed by
an advocate whose certificate had expired it was held in the case
In the Court of Appeal, the position of the law was clarified in the case of Bakunda
Darlington vs Dr. Kinyatta Stanley and Anor. Civil Appeal No. 27 of 1996. It was held inter
alia that:
“An advocate who is commissioned by the Chief Justice under S.2(1) (now S.1) of the
Commissioner for Oaths (Advocates) Act ceases to be a Commissioner for Oaths the
moment his practising certificate expires and that an advocate who practices without a
practising certificate commits an offence under S.14 (Now. S.15) of the Advocates Act.
Accordingly all the acts which he (or she) performs in his capacity as an advocate or
commissioner for oaths after the period of grace has expired are invalid. It may be
stated here that any person who administers an oath when he has no authority to do so
commits an offence under S.85 of the Penal Code Act.”
(The Commissioner for Oaths (Advocates) Act S.6 also makes it an offence).
Applying the above statement of the law, the affidavits commissioned by Stella
Acan are invalid because she did it without a valid practising certificate. The
unchallenged communication from the Chief Registrar who is the licensing officer
confirmed that Stella Acan had no practising certificates for both 2010 and 2011.
Therefore her actions could not be salvaged under the period of grace.
(3) There are people/officers who under The Commissioners for Oaths (Advocates)
Act are permitted to serve as Commissioners for Oaths even though they are not
advocates. Under S.3 thereof:
58
“Every Magistrate and the Chief Registrar of the High Court (which expression shall
include Deputy and district Registrars) shall have, virtute officii, all powers and duties
of Commission for Oaths.”
Magistrates and Registrars are therefore ex-officii Commissioners for Oaths.
Clearly there is a requirement to state the names of the Commissioner for Oaths be it
an advocate or Magistrate in the space provided. This omission is however, minor and
can be curable by an affidavit clarifying the particulars of the officer who administered
the oath.
Greenland Bank v HK Enterprises Ltd
 Where the affidavit is not commissioned or is commissioned by an incompetent

person. An affidavit is incurably defective and liable to be struck out in case it is
commissioned by an incompetent person.
Attorney General versus AKPM Lutaya Civil Application No. 1 of 2007, Court struck out
the affidavit which had not been commissioned by a Commissioner for Oaths.
Standard Chartered Bank (U) Ltd V Mwesigwa Geoffrey Philip
Court struck out a number of affidavits sworn before the Commissioner for oaths who had
been suspended from practicing as an advocate by the Law Council.
Filing of affidavits and consequences of failure to file affidavits
 An affidavit attracts court fees which must be paid either before or at the time of
filing.
Garuga Musinguzi v Amama Mbabazi

In their written submissions counsel for the petitioner submitted that all the affidavits
filed for the Respondent No. 2 appear to have been sworn before a judicial officer.
However, on the face of the said affidavits there is no stamp, as is the normal
practice, showing the fees that have been paid. For each of the affidavits a sum of
Shs.1500/= ought to have been paid under S I No. 20 of 1991. As no fees were paid,
the said documents are invalid and cannot be acted upon.
Held;
Court found that, it is clear that when challenged that no payment of fees for
swearing Respondent No. 2’s affidavits in this case, no explanation was provided
with regard to the payment of fees for swearing before a judicial officer, all the
59
Respondent No. 2’s affidavits dated 8th August 01 and 7th September 01. Counsel
could not produce a receipt or other explanation to satisfy court the requisite fees had
been paid.
Court thus considered the effect of non-payment of fees for swearing an affidavit
before a magistrate? Held that Section 100 of the Civil Procedure Act gives court
discretion to allow payment of such deficient fees at any stage of the proceedings,
and this would cure the defect. But Court could not exercise her discretion as counsel
did not request to be allowed to remedy this situation in the absence of any proof of
payment. Considering that the trial was within the last stage of these proceedings that
is writing a final decision, ordering payment of fees to be made after judgement is
written and delivered would be to give force and effect to documents before payment,
contrary to the provisions of Section 100 of the Civil Procedure Act. As such Court
struck out the said affidavits for non-payment of fees to the Judicial Officers before
whom there were sworn.
 An affidavit in support must be filed together with the pleadings in support. Where
an application is made without an affidavit or an invalid affidavit in support, the
application is without evidence and incompetent.
Nyakana & Sons Ltd v Kobusingye & 16 Ors (M.A. NO. 13 OF 2017)
Court noted that counsel for the applicant submission that he has filed a substantive
application for stay of execution in this Court was not supported by any evidence. It could
have been proper to attach this pending substantive application (if any) on the affidavit in
support of the application. In the circumstances, the Court is not able to ascertain whether
there is a pending substantive application for stay of execution or not. The Notice of Motion
also stated that that the application is supported by an affidavit deponed by Sam Phiri.
However, no such affidavit was attached. Rather the applicant instead filed an affidavit in
support, deponed by Kate Nyakana ‘in support of an application for stay of execution!’ It
therefore follows that the application did not have an affidavit in support and such an error
could not be overlooked basing on Article 126 (2) (e) of the Constitution as counsel had
suggested.
In Kaingana v Dabo Boubou (supra) it was held that:-
“Where an application is grounded on evidence by affidavit, a copy of that

affidavit intended to be used must be served with the action. In such a case,
the affidavit becomes a part of the application. The Notice of Motion cannot
on its own be a complete application without the affidavit. Therefore in the
instant case the Notice of Motion alone was not enough”.
60
 And where such affidavit is struck out unless there is any other valid affidavit, the
application collapses
In Jayanth Amratlal And Anor V Prime Finance Co Ltd court dismissed the application on
the grounds that the affidavit in support of the application was incurably defective. Further that
in the circumstances the supplementary affidavit had nothing to supplement thereby rendering
the Application unsupported by any affidavit. It was accordingly dismissed and judgment and
decree entered.
Ready Agro Suppliers Ltd and Ors V UDB. The affidavit of applicant no.3 was filed a
month after the application for leave to appear and defend was filed. Held; that the affidavit
was clearly out of time for applicant no.3, to be the supporting affidavit to his application for
leave to appear and defend. Thus the application by applicant no.3 was unsupported by
evidence, as it ought to be, and was dismissed forthwith.
 An affidavit in reply is required to be filed either within 15 days from the date of
service or any time before the hearing whichever is applicable.
Stop and See Ug Ltd v Tropical Africa Bank
Held’ A reply or defence to an application has to be filed within 15 days. Failure to file within
15 days would put a defence or affidavit in reply out of the time prescribed by the rules. Once
the party is out of time, he or she needs to seek the leave of court to file the defence or affidavit
in reply outside the prescribed time.”
This was cited with approval in Elias Waziri and Ors V Opportunity Bank Uganda Ltd,
where an affidavit in reply was filed four months after the application was served on the
respondent. It was held that the affidavit in reply in this case was filed way outside the fifteen
days. However, since there was a prayer for extension of time to file a reply, in the interests of
justice, the already filed affidavit was validated
In Energo project v Brig Kasirye Gwanga
Both respondents refused to file affidavits in reply HELD; This very case binds both
respondents. Their failure or refusal or/and 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. I also note that though there are some points of law involved, there are also some
facts that were deponed upon in the affidavit in support of the application, which needed an
affidavit in reply and rebuttal to the application. And the burden of denying the averments in
the affidavit in support of the application squarely lies on the respondents. In the result, I make
a finding that the applicant’s application was unchallenged by the respondents
61
 The foregoing principle only applies in relation to interlocutory applications and is
not a rule of general applications
Erias Waziri v Opportunity Bank distinguishes Stop and See “Post judgment applications are
not interlocutory applications and are not barred by time limit”
 Where the applicant is served with an affidavit in reply and such applicant is desirous
of controverting the contents of the affidavit in reply, he may as of right file an
affidavit in rejoinder
 Where no affidavit in reply or rejoinder is filed, in appropriate cases the conclusion
drawn by the court is that the contents of the affidavit in support or reply respectively
are not controverted. That does not however mean that the court must rely on such
contents as absolute truth
Jane Lugolobi and ors v Gerald Segirinya; HELD there was no affidavit in rejoinder to the
respondent’s affidavit in reply. HELD; The law is 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.
Sam Massa vs. Rose Achen, [1978] HCB 29, where it was held that where certain facts are
sworn in the affidavit, the burden to deny them is on the other party and if he does not, they
are presumed to have been accepted and a deponent needs not to raise them again.
Falsehoods in affidavits.
 Where an affidavit is premised on deliberate falsehoods such affidavit is liable to be

struck out if the falsehood goes to the root of the affidavits and cannot be cured by Art
126(2)(e)
Jetha Brothers Ltd v Mbarara Municipal Council;
Court found that that the affidavit in support of the application contained a falsehood
Held relying on the case of Sirasi Bitaitana & 4 others vs Emmanuel Kananura [1977]
HCB34 court held that an affidavit which contains an obvious falsehood naturally becomes
suspect and that an application supported by a false affidavit is incompetent. The instant
application is supported by a false affidavit for the reasons already stated. Once it appears an
affidavit has been permeated by a falsehood as in this case there is no way an application, not
to mention an affidavit, can be redeemed. In the result court struck out this application with
costs.
62
Meddie Dembe v Nalongo Namusisi
Held; An affidavit, which contains a deliberate falsehood, cannot be relied on. In Sirasi
Bitaitana vs Kananura [1977] HCB 34 it was held: 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 false hood then it naturally became suspect. Thus, 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. The blatant falsehood in the affidavit of the applicant cannot
be ignored, and this application would fail for that reason alone.
Kakooza Jonathan V Kasaala Growers Co-operative Society
Learned counsel for the applicants complained that the respondent's affidavit was
argumentative, did not rebut facts raised against them and was full of falsehoods. That, the
deponent, refers to himself as a female whereas he is a male and that this was intended to
conceal his identity.
Held; that there was no falsehood in the affidavit since 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.
 Where the affidavit makes reference to annexures, it is prudent practice for the
commissioner to seal the said annexures though failure to do so is not fatal to the
affidavit as that is a procedural requirement.
Lugazi Progressive School v Sserunjogi
The first objection raised by learned counsel, Mr. Zehurikize, is that this application is
not competent because the affidavit, deponed in support of it must be struck out owing to
the fact that the two Annextures attached to it, and marked as annextures A and B, were
not verified by the Commissioner for Oaths.
Court held that it was bound by the court of Appeal decision in Uganda Corporation
Creamaries Ltd. and Henry Kawalya vs. Reamation Ltd.,which judicially considered the
same point. The Court of Appeal, per Engwau, J. A. stated,
“Aslong as an affidavit is properly sworn before a Commissioner for Oaths, it is

competent. It is also my very well considered view that such an affidavit may or may
63
not have exhibits attached to it. In the event of exhibits having been attached to
affidavits, then all such exhibits must be sealed by the Commissioner for Oaths and
must be marked with serial letters of identification as required by Rule 8.” (Emphasis
Added)
Elsewhere in the ruling, Engwau J. A. drew a distinction between “exhibits” and

“annextures” attached to affidavits commissioned by Commissioner for Oaths. The Court of
Appeal was of the view that rule 8, of the Commissioner for Oaths Rules, applied only to
exhibits which have been produced and exhibited to a court during a trial or hearing, in proof
of facts. The rule did not apply to annextures to affidavits which are not exhibits. The court
stated, at page 4 of the ruling.
“In my view, whether or not those annextures 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 a court during a trial or hearing in proof
of facts. In any case, the annextures in the present case are not in dispute. Even if those
annextures were detached, the affidavits thereof would still be competent td support the
Notice of Motion. Rule 8, though mandatory, is procedural and does not go to the root as
to competence of affidavits.”
The Court thus held;
Per; V. F.Musoke Kibuuka
“Matters of procedure are not normally of a fundamental nature. I do not think that the
effect of a failure by a Commissioner for Oaths to comply with the procedure laid down in
rule 8 of the Commissioner for Oaths Rules should result into the invalidation of the
affidavit to which the unverified exhibits or annextures are attached. Rather, the most a
court would do would be to reject the exhibits or annextures themselves as they would not
be competently presented. The affidavit should then be considered for whatever it is worth
without those exhibits of annextures. I also agree that rule 8 relates to exhibits and the
word ‘annexture’ which cannot be used interchangeably with exhibit should not be read
into it. I find all the circumstances and facts of the instant application to be similar to those
which pertained in the Uganda Creamaries Ltd. case. Besides, a decision of the Court of
Appeal binds this court. I have no option by to follow it.”
64
Kebirungi Justine v Road Tainers Ltd
Counsel contended that the affidavit in support of the application to amend the plaint was
incurably defective for offending the provision of rule 8 of the first schedule to commissioners
for Oath (Advocates) Act Cap. 53 Laws of Uganda
HELD; Court relied on the case of Uganda Corp. Creamaries Ltd & Another
Vs Reamoton Ltd. (supra), 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 Commissioner for Oaths (Advocates) Act Cap 53
Laws of Uganda for the reason that the exhibits to those affidavits were not sealed and marked
with serial letter of identification. Engwau, JA held as follows:-
“In my view, whether or not those annextures 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 a Court during a trial or
hearing in proof of facts. In any case, the annextures in the present case were not in
dispute. Even if those annextures 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 competence of affidavits. In the premises, substantive
justice should be administered without undue regard to technicalities”.
Affidavits deponed by advocates, implications and legal consequences
 Where an affidavit is deponed by an advocate, the matter should not be contentious,

otherwise advocates are barred from deponing affidavits on contentious matters.
Jayanth Amratlal and anor v Prime Finance Co Ltd.
The applicant, through M/S MWM Advocates & Solicitors, filed an application for leave to
appear and defend a suit. The Application was supported by an affidavit deponed to by Mr.
Steven Mwandha, one of the advocates in M/s MWM Advocates and solicitors.
Held; The application was dismissed because the said application was supported by an
affidavit sworn by an advocate who is barred by the Advocates Professional Conduct
Regulations from deponing affidavits on contentious matters which he as an advocate cannot
prove. (regulation 9 of the Advocates (Professional Conduct) Regulations) 1979 and thus
incurably defective. However, the judgment was set aside on the principal that lawyers’
shortcomings should not be visited on the Applicants.
65
Chatrabhul Laximidas v Kanoni Importers
 Similarly advocates are barred from deponing affidavits on behalf of their client
Ismail v Kamukama; held; Counsel Jombwe's affidavit was defective because as counsel he
could not in the same cause depone of matters substantive and contentious pertaining to the
allocation of the suit premises and this offended against regulations 9 of the Advocates
(Professional conduct) Regulation 1977. But this did not in any way render the notice of
motion defective because it was still supported by affidavit of Kyeyune.
Massa Vs Achien: HELD. Rule 8 (now 9) of the Advocates, Professional Regulations, 1977
prohibits counsel from deponing an affidavit in a matter in which he appears as counsel. It also
prohibits counsel from commissioning an affidavit in his own matter.
In the case of Yussuf Abdulgani Vs. Fazal Garage (1953) 28 LRK 17 it was held that an
advocate should not swear a belief affidavit on information supplied by his client if his client
is available to swear of his own.
Inconsistence, contradictions in affidavits and legal consequences
 Where the affidavit contains grave and material contradictions, inconsistences and
discrepancies which cannot ably be explained, the court may be inclined to strike out
the affidavit especially where such contradictions go to the root of the matter.
In Bitaitana vs Kananura [1977] HCB 34 it was held: 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 false hood then it naturally became suspect.
Mugume v. Akankwasa MSC. 4/2008, where J. Stella Arach
Held that; “inconsistencies in affidavits cannot be taken lightly, and an affidavit containing
falsehoods is suspect and is bound to fail.”
 However, where the contradictions and inconsistences are ably explained, the court if
satisfied with the explanation may reject any application to strike out the affidavit.
Mark Okello v David Wasajja.
 An affidavit is required to contain information within the personal knowledge of the

deponent, information that is relevant to the subject matter before court and
information, the source whereof is ably disclosed.
66
Eseza Namirembe v Musa kizito
Court found the affidavit of no evidential value, because the affidavit which, did not set forth
“concisely the facts upon which the right to the relief sought by the summons is founded
whatever it stated did not support the reliefs sought as required. The affidavit was also
deficient because it did not set out the deponent’s means of knowledge or her grounds of belief
regarding the matters stated on information and belief, and it did not distinguish between
matters stated on information and belief and matters deposed to from the deponent’s
knowledge.
Court thus held; It has been repeatedly held that an affidavit of this kind ought never to be
accepted by a Court as justifying an order based on the so called “facts”. It seems that those
concerned with the drafting of such affidavits have little or no regard to these fundamental
requirements. As was said in Premchand Raichand v. Quarry Services, [1969] E.A. 514, at p.
516, “This is not merely a matter of form, but goes to the essential value of the affidavit”. The
affidavit was thus of no evidential value and, with respect, I would have refused to act on it.
In Assanand & Son Uganda Ltd. v East African Records Ltd. (1 959) EA 360, the Court of
Appeal held that a court should not act on an affidavit which did not distinguish between
maters stated on information and belief and matters to which the deponent swears from his
own knowledge, or an affidavit which does not set out the deponents means of knowledge or
his grounds of belief regarding the matter stated on information. In Assanand & Sons v EA
Records (1 959) EA 360 at p.364, the learned President of the Court of Appeal said,
“The affidavit of Mr. Campbell was deficient in three respects. First it did not set out
the deponent’s means of knowledge or his grounds or belief regarding the matters
stated on information and belief, and secondly it did not distinguish between matters
stated in information and belief and matters deposed to from the deponents
knowledge (see O. XVIII r.3 (1) and Standard Goods Corporation Ltd. v
Harakchand Nathu &. (1950) 17 EACA 99). The court should not have acted upon
an affidavit so drawn
Standard Goods Corporation Ltd Vs Hrakhchand Nathan: HELD; It has repeatedly been
held that an affidavit which does not state the source of the deponent’s information or grounds
of his belief ought never to be accepted by a court as justifying an order or based on the so
called facts; This is not merely a mater of form but goes to root of the affidavit. The affidavit
was thereof of no evidential value.
At p.100, the court said
67
“The affidavit in question consisted of seven paragraphs. Para 2 was the facts stated
herein are within my knowledge; and para 7 was what is stated herein is true and
correct to the best of my knowledge and information. As regards paragraph 2, I would
observe that facts can be within a person’s knowledge in two ways: (1) by his own
physical observation or (2) by information given to him by someone else. It is clear
that reading paragraphs 2 and 7 of the affidavit together, the deponent was stating
facts without stating which were from his own observation and which were from
information. An affidavit of this kind ought never to be accepted by a court as
justifying an order based on the so called facts.”
Kaingana V 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 to 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.”
 An affidavit should not be unnecessarily too long, argumentative neither should it

contain irrelevant subject matter.
Nakiridde Vs Hotel International: Held; Counsel for the applicant deponed the reason as to
why he did not attend court but the reply touched on matters of law that were completely
irrelevant to the application, the affidavit was unnecessarily and oppressively long and in some
cases an insult to the purpose for which it was supposed to serve. Though there was no law
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specifically giving power to court to strike out the affidavits for prolixity, the court had
inherent powers to do so in order to prevent its record from being an instrument of
suppression. The affidavit would therefore be removed from court record.
 Hill Vs Hant Davis: The issue was whether an affidavit can be struck out on prolixity. Held:
That though there is no rule of court specially giving powers to the court to take pleadings on
affidavits off the file for prolixity, yet the court has inherent powers to do so in order to
prevent its record from being made the instrument of oppression. When the affidavit of
documents were of oppressive strength but it appeared to the court that the delay and
expense would be caused by filing a fresh one, the court permitted it to remain on the file but
ordered the party filing it to pay the costs of it.
Applicability of Article 126(2)(e) to defects in affidavits.
The article mandates courts to administer substanative justice without undue regard to
technicalities. Art 126[2] is normally be invoked to cure any procedural defects in an affidavit
but cannot be evoked to cure any mandatory requirements that the affidavit has failed to
satisfy.
Kasaala Growers v Kalemera Jonathan.
Court agreed with what the Supreme Court had stated in Banco Arabe Espanal - vs. -
BOU, Civil Appeal No. 8 of 1998, that;
“-- - - - - a general trend is towards taking a liberal approach in dealing with

defective affidavits. This is in line with the Constitutional directive enacted in
article 126 of the Constitution that courts should administer substantive justice
without undue regard to technicalities Rules of Procedure should be used as
handmaiden of justice but not to defeat it.”
However, a distinction must be drawn between a defective affidavit and failure to comply with
a statutory requirement. A defective affidavit is, for example, where the deponent did not sign
or date the affidavit. Failure to comply with a statutory requirement is where a requirement of
a statute is not complied with. In my view, the latter is fatal.
All Sisters Co Ltd v Guangzhou Tiger Head Battery
Justice Madrama; HELD; . The intention of article 126 (2) (e) is to ensure that substantial
justice is done and that parties are not blocked by matters of form. To a large measure the
question of whether a rule or law is of a fundamental nature in the circumstances of the case or
69
not has been left to the judgment of the court. The decisions of courts have often met the
criteria in article 126 (2) (e) of the constitution as was captured in the case of Iron and
Steelwares Ltd v. C.W. Martyr & Co. [1956} 23 EACA 175 AT 177 where the East African
Court of Appeal observed that: “Procedural rules are intended to serve as handmaidens of
justice, not to defeat it.”
Saggu v Roadmaster Cycles (U) Ltd [2002] 1 EA 258

Appellant argued that the Judge failed to address the preliminary objections raised because the
affidavit was not dated and the application did not cite the correct law under which it was
brought.
Held
i. Where an application omits to cite any law at all or cites the wrong law but the jurisdiction
to grant the order exists, the irregularity or omission can be ignored and the correct law
inserted
ii. 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(e) of the Constitution (1995). A judge has power to
order that an undated affidavit be dated in court or that the affidavit be resworn and may
penalize the offending party in costs
Besigye v Museveni
Per Odoki CJ
From the authorities I have cited there is a general trend towards taking a liberal
approach in dealing with defective affidavits. This is in line with the constitutional
directive enacted in article 126 of the Constitution that the courts should administer
substantive justice without undue regard to technicalities. Rules of procedure should be
used as handmaidens of justice but not to defeat it.
In the present case, the only method of adducing evidence is by affidavits. Many of
them have been drawn up in a hurry to comply with the time limits for filing pleading
and determining the petition. It would cause great injustice to the parties if all the
affidavits which did not strictly conform to the rules of procedure were rejected. This is
an exceptional case their all the relevant evidence that is admissible should be received
in court. I shall therefore reject those affidavits, which are based on hearsay evidence
only. I shall accept affidavits, which contain both admissible and hearsay evidence but
reject the parts, which are based on hearsay, and only parts which are based on
knowledge will be relied upon. As order 17r 3 (2) provides the costs of affidavits
which contain hearsay matters should be borne by the party filing such affidavits.
70
THE LAW RELATING TO JUDGMENTS.
 The judgements connotes the final pronouncements of court on the issues and subject
matter lawfully brought before such a court for adjudication. Order.21 does prescribe
the pre-requisites of a judgment including the fact that it must contain the reasons and
the Orders and should be signed and dated.
J Madrama in Liberty Construction Co. Ltd V R.C. Munyani & Co Advocates
Held;
In making judicial decisions there are certain guidelines to be followed. The first
guideline is provided for under order 15 of the Civil Procedure Rules which deals with
the framing of issues. Issues arise when a material propositions of law or fact is
affirmed by one party and denied by the other; Under the first guideline it is expected
that having framed issues the court must make pronouncements on those issues.
As far as judicial decisions are concerned, judicial officers are also guided by order 21
of the Civil Procedure Rules. Contents of a judgment are provided for under order
21 rules 4 of the Civil Procedure Rules which provides as follows:
"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.”
Order 21 rule 5 of the Civil Procedure Rules provides that the Court shall state its
decision on each issue or controversy. It provides as follows:
"In suits in which issues have been framed, the Court shall state its finding or
decision, with the reasons for the finding or decision, upon each separate issue,
unless the findings upon any one or more of the issues is sufficient for the decision
of the suit.”
 Judgment must be signed and dated. The requirement to have a judgment signed is to
guarantee its authenticity and to avoid any subsequent amendments to such a judgment.
Orient Bank Ltd v Fredrick Zaabwe Supreme Court
Held; It is trite that a judgment takes effect from the day it is pronounced, hence the
requirement that it be dated as of the day it is delivered and not necessarily the day it is signed,
though more often than not the two are done at the same time. On the other hand, the
requirement for the judgment to be in writing and signed is to ensure its authenticity and
validation as the judgment of the judge/judges making it. In the case of reserved judgments,
the writing and signing are invariably done before the time the judgment is delivered, and its
authenticity and validity are thus preserved up to its delivery. Where at any time before its
delivery, the judgment is altered because there is change of mind, the altered judgment has to
71
be similarly authenticated and validated. In either case, the judgment is delivered as the valid
judgment of the judge who prepared and signed it.
 Where a judgment is not signed and there is no evidence that it was pronounced in
open court in the presence of the parties and their respective advocates such a judgment
is not a valid judgment.
Caroline Mboijana v James Mboijana
The record of proceedings contained neither a signed judgment nor a handwritten draft of its
original. There was however unsigned but dated and typed judgment. The court of appeal,
held that there was no judgement in the absence of a signed and certified judgment and
ordered that the case be remitted to another judge to write the judgment or try the case de
novo.
Held; the Supreme Court on re-evaluating the evidence found that the learned trial judge
completed the case and wrote the judgment and delivered it in open court. Counsel who
represented both parties in the trial court confirmed in their respective affidavits that following
the conclusion of the trial before the late Mukanza, J., judgment was delivered. The decree
which was approved by counsel for respondent was signed by counsel for the appellants, and
by the trial judge. No evidence was adduced to challenge those signatures or to suggest that
they may have been forged.
Therefore in the view of the court, there was overwhelming evidence proving that in Civil Suit
No. 845 of 1996, the learned trial judge completed the case and wrote the judgment and
delivered it. Counsels were summoned to receive it and it was indeed read in court on
the 19th day of October, 1999
Maniraguha Gashumba v Sam Nkundiye
Held that a judgment must be signed and dated by a judge or Magistrate who wrote it at the
time of pronouncing it. A judgment that is not signed and dated in accordance with Order 21
rule 3(1) of the Civil Procedure Rules is no judgment at all and is therefore invalid. That
neither oral evidence of the Judicial Officer who wrote it nor certification could validate such
an unsigned judgment. Thus court found that there was no valid judgment in this case
Re Howard Little; Court of Appeal
Mwiru Paul; v Nabeeta
 A judgment of a court is only valid if rendered by a court that is valid and properly
constituted in accordance with the law. It is valid if its delivered by a court with
jurisdiction.
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Geofrey Komakech and anor v Rose Akol and 2 Ors
The Court record shows that the Court was in a full coram in that there were three justices during the
hearing of the application to strike out the appeal. Judging from the contents of the main ruling striking
out the appeal, there appears to have been agreement among the three justices constituting the Court to
strike out the appeal. However, the third learned Justice of Appeal declined to sign the main ruling
apparently because of the order as to who should pay the costs. However she did not give her own
dissenting ruling as required by Rule 33(6) of Court of Appeal Rules. She also declined to participate
in the subsequent hearing on costs because she disagreed as to who should pay costs.
HELD; there is no doubt that there was no coram when the hearing and final decision on costs was
made. The order as to payment of costs is obviously incompetent. Also her refusal to sign the main
ruling and her absence from the hearing on costs rendered the ruling / order of the court incompetent.
That the ruling by the Court of Appeal is a nullity because it lacked Coram during hearing and decision
 Sometimes judicial officers retire, or are promoted, before delivering the judgment; the
question is how do you deal with such judgments. Order 21 requires that judgments are
delivered in open court. Rule 2 provides that a judge will pronounce a judgment written
and signed by his predecessor. In practice courts sometimes delegate the delivery
function to the registrar of those courts. The issue becomes more problematic when the
matter is before the Court of Appeal where some quorum is required. (see Komakech
above).
Orient Bank v Zzabwe CA no 17.
Orient bank had been ordered to make certain payments to Zzabwe By that date, Justice
Karokora had retired from service, so that his signed judgment was delivered by a sitting
Justice. Whether that was the judgment of the court. The argument was that the absence of
that judge invalidated the judgment. This was based on two Indian cases.
Held;
Court recognised the reasoning of the learned justices in the two cases, which obviously
they founded on the Indian law. However, having regard to the provisions of our law, court
was not persuaded to conclude as the Indian judges did, that death or retirement of a judge
necessarily invalidates an undelivered judgment that the judge signed before the death or
retirement.
Court referred to the practice and procedure of the Supreme Court which is governed by
the Judicature (Supreme Court) Rules (S.I. 13-11). The provisions relating to judgments
are set out in Rule 32,
In Court’s view sub-rule (8), which envisions delivery of a reserved judgment by a judge
who did not sit at the hearing or the registrar, covers not only the scenario where the judge
who sat is temporarily absent but also the two scenarios where the judge is no longer
available by reason of death or retirement. The only conditionality for the application of
73
the sub-rule is that the judgment in question is written and signed by the judge who took
part in the hearing and deciding of the case. The reason that prevents the judge who wrote
and signed the judgment to deliver it in person is not a factor for sub-rule (8) to apply. For
purposes of the sub-rule, it is immaterial that the judge is prevented by death or retirement
provided that at the time of writing and signing the judgment the judge was a member of
the Court.
It is trite that a judgment takes effect from the day it is pronounced, hence the requirement
in sub-rule (9) that it be dated as of the day it is delivered and not necessarily the day it is
signed, though more often than not the two are done at the same time.
In the case of reserved judgments, the writing and signing are invariably done before the
time the judgment is delivered, and its authenticity and validity are thus preserved up to its
delivery. Judgment is delivered as the valid judgment of the judge who prepared and
signed it.
That neither the interest of justice nor public policy would demand that a decision of five
judges be invalidated because one of the judges who participated in the decision retired or
died before the decision was pronounced.
Judgment and legal effect
 Where a judgment is dully entered by court such judgment is binding on the parties
whether in personam or in rem and it must be complied with and given effect by all
parties and authorities.
Hadkinson v Hadkinson [1952] 2 All ER 567
On a petition by a wife for the dissolution of her marriage, a decree nisi was granted, and it
was directed that the child of the marriage should remain in the custody of his mother, but that
he should not be removed out of the jurisdiction without the sanction of the court. On the
decree being made absolute, the mother re-married, and without the sanction of the court she
removed the child to Australia. On a summons by the father an order was made directing the
mother to return the child within the jurisdiction. On an appeal by the mother against the order
the father objected that, as she was in contempt, she was not entitled to be heard.
Held – It was the plain and unqualified obligation of every person against, or in respect of,
whom an order was made by a court of competent jurisdiction to obey it unless and until it was
discharged, and disobedience of such an order would, as a general rule, result in the person
disobeying it being in contempt and punishable by committal or attachment and in an
application to the court by him not being entertained until he had purged his contempt;
Disregard of an order of Court is a matter of sufficient gravity, whatever the order may be.
Where, however, the order relates to a child the Court is, or should be, adamant on its due
74
observance. Such an order is made in the interests of the welfare of the child and the Court
will not tolerate any interference with or disregard of its decisions on those matters.”, and
least of all would permit disobedience of an order that a child should not be removed outside
its jurisdiction; in the present case the mother was not entitled to prosecute or be heard in
support of her appeal until she had taken the first and essential step towards purging her
contempt of returning the child within the jurisdiction.
Hamutenya v Hamutenya [2005] NAHC 1 in the High Court of Namibia
The applicant is seeking an amendment of the settlement agreement incorporated in the final
decree of divorce issued by this Court. In terms of that agreement custody and control of the
two minor children born of the dissolved marriage between the parties are vested in the
respondent, subject, however, to the applicant’s rights of reasonable access to them. The effect
of the amendment which the applicant is seeking will be to vest the right to custody and
control of the children in him. The respondent is opposing the application on a number of
grounds, one of which was raised in limine, i.e. that the applicant is in contempt of the existing
order and that the Court should decline to hear the application unless and until the applicant
has purged his content.
Held;
“Judgments, orders, are but what the Courts are all about. The effectiveness of a Court
lies in execution of its judgments and orders. You frustrate or disobey a Court order
you strike at one of the foundations which established and founded the State of
Namibia. The collapse of a rule of law in any country is the birth to anarchy. A Rule of
law is a cornerstone of the existence of any democratic government and should be
proudly guarded.”
“The matter is one of public policy which requires that there shall be obedience to orders of
Court and that people should not be allowed to take the law into their own hands.
“An order of a court of law stands until set aside by a court of competent jurisdiction. Until
that is done the court order must be obeyed even if it may be wrong. A person may even be
barred from approaching the court until he or she has obeyed an order of court that has not
been properly set aside (Hadkinson v Hadkinson .) court further applied verbatim the holding
in Hadkinson above )
For purposes of the point in limine it is sufficient that the applicant has been and still is in
wilful default of the Court’s order and that there are no exceptional circumstances which allow
the Court to hear the application before the contemptuous party has purged his or her default.
75
Esther Kisaakye v Sarah Kadama
the grounds were that a court order for temporary injunction was on the 20th March 2014
issued by consent of the parties restraining the respondent from further publication of
defamatory articles. That on the 20th June 2014 the respondent in violation of the order wrote
a defamatory letter to the Judicial Service Commission. That on the 4th April 2016 judgment
in the High Court Land Division was passed in favour of the applicant and the respondent
caused the Bukedde News Paper to publish a story quoting her saying that the applicant had
stolen her husband which is a defamatory remark. That on 14th May 2016 an article was
published in the Monitor News Paper wherein the respondent narrated her ordeal with the
applicant’s husband and how she lost her supposed marital home to her husband’s new and
legal wife. That the respondent has blatantly violated the temporary injunction so if court does
not grant this application the contempt will continue.
HELD;
Per Stephen Musota
According to Halsbury’s Laws of England, 4th Edition
“it is a civil contempt to refuse or neglect to do an act required by a judgment or order of

the court within the time specified in that judgment, or to disobey a judgment or order
requiring a person to abstain from doing a specific act.”
Further, according to case law, it is the plain and unqualified obligation of every person
against or in respect of whom an order is made by a court of competent jurisdiction to obey it
unless and until it is discharged. The uncompromising nature of this obligation is shown by
the fact that it extends even to cases where the person affected by an order believes it to be
irregular or even void. See: Hadkinson Vs Hadkinson [1952] ALL ER 567.
In LC Chuck and Cremier [1896] ER 885, it was held that a party who knows of an order
whether null or void, regular or irregular cannot be permitted to disobey it. That it would be
dangerous to hold that the suitors or their solicitors, could themselves judge whether an order
was null or valid – whether it was regular or irregular. That the course of a party knowing of
an order which is null or irregular and who might be affected by it is plain. He should apply to
the Court that it might be discharged. But as long as it exists, it must be obeyed.
It follows from the above authorities that the position of the law is clear; as long as court
orders are not discharged, they are valid since they are valid, they should be obeyed. That
being the case, the only way in which a litigant can obtain reprieve from obeying a court order
before its discharge is by applying for and obtaining stay. As long as the order is not stayed,
and is not yet discharged, then a litigant who elects to disobey it does so at the risk and pain of
committing contempt of court.
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 A judgement of a court must therefore be respected and is enforceable against the
parties thereto unless set aside, varied or otherwise nullified in appropriate
proceedings.
Edith Nantumbwe v Mariam Kuteesa
Held;
The consent judgment which has the effect of setting aside the ruling of the High
Court is not signed by 1st plaintiff in the original suit. That consent cannot be valid in
that regard. 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 party to
the agreement or to the consent judgment to do anything he or she has not consented
to. And parties cannot agree to aside a judgment or an order of court.
 Where a party is aggrieved by a judgment the lawful recourse available is to apply to

have the judgment set aside. Otherwise however irregular it may have been obtained
the judgment is binding.
Kahumbu v National Bank of Kenya 2003) 2 EA 475
The plaintiff made an application to court seeking discovery of documents by the defendant.
The Court made an order requiring the defendant to make discovery within 14 days, in default
of which the statement of defence would be struck out and judgment entered in favour of the
plaintiff. The defendant sought to comply with the court order and produced some but not all
documents specified in the court order. Following the failure by the defendant to produce all
the documents specified, the plaintiff applied to court to have the statement of defence struck
out in accordance with the earlier court order. The defendant opposed the application averring
that it had fully and conclusively complied with the court order because it had produced all
documents in its possession. It was also contended that the Judge had been was wrong in
imposing the sanction as his order had no basis under Order X, rule 20 of the Civil
Procedure Rules and that the said order was therefore invalid and should not be given effect
even if there was no compliance.
Held – A court order is valid and binding unless and until it is appealed against, amended or
set aside. A court cannot hear the appeal against an order from another court with co-ordinate
jurisdiction.The affidavit concerning documents by the defendant’s employee was prima facie
conclusive.
However, the Court was not bound to recognise it as conclusive if there was a reasonable
probability or presumption or even ground for suspicion that the defendant had other relevant
77
documents in its possession. In the present case, there was reason to suspect that the defendant
had not been candid or forthright with the Court. The conduct of the defendant showed a wilful
disregard of a court order, which merited imposition of the penalty ordered by the court. The
defendant’s defence would therefore be struck out.
Amrit Goyal v Harichand Goyal and Ors
The respondents were ordered to deposit security for costs within 30 days, by 29th May but
instead deposited the money by August.
HELD; A court order is a court order. It must be obeyed as ordered unless set aside or varied.
It is not a mere technicality that can be ignored. If we allowed court orders to be ignored with
impunity, this would destroy the authority of judicial orders which is the heart of all judicial
systems.
On applying Article 126(2)(e) , court stated;
Finally, we consider whether failure or refusal to comply with a court order is

a technical irregularity which can be cured under article 126(2)(e) of the Constitution and
Rule 2(2) of this Courts Rules. From what we have just stated above, we hold a firm view
that a court order is not a mere technical rule of procedure that can be simply ignored. In
our jurisprudence, court orders must be respected and complied with. Those who choose
to ignore them do so at their own peril.
The application was struck out for refusal to obey court’s order.
In Hamutenya v Hamutenya, it was held; An order of a court of law stands until set aside by
a court of competent jurisdiction. Until that is done the court order must be obeyed even if it
may be wrong (Culverwell v Beira 1992 (4) SA 490 (W) at 494A – C
 Where judgements are not complied with, the result is contempt of court. Contempt can
be in the face of the court or in respect to judicial decisions. Contempt in the face of the
court is punishable at the discretion of the judicial officer without according a hearing
(art 28(12)
 The court that has passed the judgment becomes functus officio and incapable of
altering or amending the judgment except on the proper application where the law and
the grounds so permit.
Orient Bank ltd v Fredrick William Zaabwe; Supreme Court
78
HELD; It is trite law 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. The only circumstances under which this
Court may be asked to re-visit its decision are as set out in Rules 2(2) and 35(1) of the Rules of
this Court. Subject to the inherent powers and the slip rule, the Court’s decision in every
proceedings is final.
Court quoted Sir Charles Newbold P., in Lakhamshi Brothers Ltd. vs. R. Raja and Sons
(1966) E.A. 313; at p. 314 where he said.
There is a principle which is of the very 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. This court is now the final court of appeal and when this court
delivers its judgment, that judgment is, so far as the particular proceedings are
concerned, the end of the litigation. It determines in respect of the parties to the
particular proceedings their final legal position, subject, as I have said, to the limited
application of the slip rule.”
TYPES OF JUDGMENT
1. Ordinary judgment.
An ordinary judgment presupposes a reasoned decision of a court pursuant to an inter parte

hearing, such a judgment would ordinarily contain;
a. brief facts,
b. the issues set out at scheduling,
c. analysis of the law and its application to the facts,
d. findings of the court on each of the issues and
e. the orders of the court based on its findings
J Madrama in Liberty Construction Co. Ltd V R.C. Munyani & Co Advocates
Held; As far as judicial decisions are concerned, judicial officers are also guided by order 21
of the Civil Procedure Rules. Contents of a judgment are provided for under order 21 rules 4
of the Civil Procedure Rules which provides as follows:
"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.”
Order 21 rule 5 of the Civil Procedure Rules provides that the Court shall state its decision on
each issue or controversy. It provides as follows:
79
"In suits in which issues have been framed, the Court shall state its finding or decision, with
the reasons for the finding or decision, upon each separate issue, unless the findings upon any
one or more of the issues is sufficient for the decision of the suit
In an ordinary judgment the parties proceed inter-parte while in exparte judgment the party
proceeds exparte
2. Default judgment.
 When a party is served with summons and the plaint, they are required to respond by
way of filing a WSD, in cases of summary procedure, a defendant is expected to apply
for leave to appear and defend; those processes are time bound, 15 days for the plaint,
10 days for summary procedure.
 Sometimes the defendant does not comply, that non-compliance may be as a result of
negligence or may result from a default in the service process, with the result that that
person/defendant is unable to comply with the requirements to file.
 The judgment obtained in that context may not be a judgment on the merits, because
the parties may not be heard. That judgement is in default, normally described as a
default judgment.
 This is provided for under O.9 r6 of the Rules and in order for such a judgment to be
entered by court the following preliquisite must have been satisfied
a. The suit should have been commenced by ordinary plaint under O.4r1 in line with O.7
b. The claim in the plaint must be for a liquidated demand only. The liquidated demand
for this purpose means a specific sum of money claimed under any contract, under
taking or other documents of acknowledgment
Twine Amos v Tamusuza James; per J Mulyagonja
As to whether the trial court properly entertained the respondent’s suit ex parte, the applicant’s
complained that court entered an interlocutory judgment against him in the suit under
Order 9 rule 6 CPR in the absence of a liquidated demand in the plaint.
HELD; The operative phrase for entering judgment in the provision above (Order 9 rule 6
CPR) is “liquidated demand.” Osborn’s Concise Law Dictionary (7th Edition, Sweet &
Maxwell) defines “liquidated” as fixed or ascertained. According to Black’s Law Dictionary
(6th Edition) a liquidated claim is an amount which has been agreed upon by parties to the
action, or one that is fixed by operation of law.
In this case, the correct provision for entering judgment against the applicant was Order 9 rule
7.. however court found that entering judgment under Order 9 rule 6 was only irregular and the
irregularity was not a material one because thereafter the court followed the correct procedure
when the suit was set down for assessment of damages.
80
J. Madrama in Valery Alia v Alionzi John
HELD; Halsbury's laws of England volume 12 (1) fourth edition reissue page 267 and
paragraph 808 defines liquidated and unliquidated damages and penalties as follows:
"The parties may agree by a contract that a particular sum is payable on the default of
one of them. If the agreement is not obnoxious as a 'penalty', such a sum constitute
'liquidated damages' and is payable by the party in default. The term is also applied to
sums expressly made payable as liquidated damages under a statute. In every other
case, where the court has to quantify or assess the damages or loss, whether pecuniary
or non pecuniary, the damages are 'unliquidated'
Lloyds Forex Bureau v Securex Agencies
HELD; 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
Concern Worldwide V Mukasa Kugonza
Per Justice H. Wolayo
HELD;, I wish to comment on the character and content of the default judgment. A
default judgment is entered where there is proof of service and the defendant has not filed
a defence within the specified time. Rules 6 and 8 of order IX of the CPR are relevant.
Under rule 6, where plaint is for a liquidated demand, judgment will be entered for the
sums claimed. However under rule 8, where the claim is for pecuniary damages, the rule
requires that an interlocutory judgment is entered and the suit set down for formal proof.
The awards in the default judgment are not based on any evidence
 Under the claim for a default judgment, interest may be awarded at a rate pleaded by a
party and in the absence of any specific rate, at a rate of 8 percent per anum O.9r6.
It provides; “Where the plaint is drawn claiming a liquidated demand and the
defendant fails to file a defence, the court may, subject to rule 5 of this Order,
pass judgment for any sum not exceeding the sum claimed in the plaint together
with interest at the rate specified, if any, or if no rate is specified, at the rate of 8
percent per year to the date of judgment and costs
 The defendant must have been served with summons to file a defense in the manner
provided for service of summons.
81
Vallery Alia v Alionzi John, court set aside an interlocutory judgment which was entered
without proof before court that summons together with the plaint had been served upon the
defendant. In Uganda the requirement under order 9 rule 5 of the Civil Procedure Rules file an
affidavit of service upon the court record is a mandatory requirement. That the summons is an
order of the court requiring the defendant to file a defence within the prescribed time of 15
days and warning of the consequences of non-compliance with the filing of a defence. It is a
fundamental rule of justice that before anybody can defend himself or herself, he or she has to
be notified of the particulars of the claim against him or her.(article 28). Therefore non-
compliance with order 5 rule 2 of the Civil Procedure Rules renders the proceedings an
irregularity
Craig v Kanseen [1943] 1 All ER 108 HELD; that the failure to serve the summons upon
which the order was made was not a mere irregularity, but a defect which made the order a
nullity and therefore, the order must be set aside. There must be evidence of effective service
of summons and the pleadings on court record O.5r6 and O.
Edison Kanyebwera v Pastori Tumwebaze,
HELD; there was no evidence on record that the defendant was served. Order 5, rule 17 of the
C.P.R requires the serving officer, to make an affidavit of service stating the time when and
the manner in which the summons was served and name and address of the person, if any,
identifying the person served and witnessing the delivery of the tender of the summons. The
provisions of this rule is mandatory, it was not complied with in the instant case. What the rule
stipulates about service of summons, applies equally to service of hearing notices. There was
no affidavit of service on the record. The absence of such affidavit leads inevitably to the
conclusion that the defendant was not properly served with the hearing notice before the suit
was heard in his absence. Appeal allowed.
 The time for filing a WSD by the defendant must have lapsed and no such defense is
on record O.8r 1(2 )provides for filing a WSD within 15 days and in case of AG for 30
days
Mark Graves v Balton
Held; A defendant who has been served with summons is required to file a defence within the
time and manner as provided by Order 8. Court found that the application was filed out of the
time limited for service of the defence. The judge quoted In Uganda Revenue Authority Vs
Uganda Consolidated Properties Ltd (1997 – 2001) UCL 149 Justice Twinomujuni JA stated:-
“Time limit’s set by statutes are matters of substantive law and not mere technicalities and
must be strictly complied with.” He thus held that the application was caught up by the time
limits
82
Uganda Telecom ltd v Airtel UG ltd,
Held; “where a judgment is entered before the expiry of the time prescribed in the summon
such a judgment is a nullity”
 Where the court is satisfied as to the nature of the claim, evidence of service
and the failure by the defendant to enter appearance, such court may on the
application of the plaintiff enter judgment for a sum not exceeding the amount
claimed together with interest at a rate specified on at 8 percent per annum
Dembe Trading Enterprises Ltd V Uganda Confidential Ltd
The judge set aside the order of the Registrar entering interlocutory judgment in the suit as
having been entered in error and the proceedings following that entry of the interlocutory
judgment as it was entered under a wrong rule.
 The application for a default judgment is by way of a formal letter addressed to

the registrar if the matter is in the High court or to a trial Magistrate if the
matter is in a Magistrate court. O.9r6
 In terms of forum where the matter is in the High court the jurisdiction to enter
a default judgment may be exercised either by a registrar or by a judge O.50 of
the CPR and Practice direction No.1 of 2002
Default judgment against government or Attorney General
Where the AG is a defendant, a default judgment may be entered subject in compliance with
the following.
a. The suit must be by ordinary plaint and the claim must be liquidated/liquidated demand
b. Where summons are duly served on the AG the AG has 30 days within which to file a
WSD
AG V Sengendo
The plaintiff had been attacked, shot and injured by soldiers on a highway a few hours after an
assassination attempt on the then President. Counsel for the defendant had filed no defence but
proposed to take part in the proceedings. When this was refused he relied on r. 6, Civil
Procedure (Government Proceedings) Rules.
Held –
(i) a defendant who files no defence cannot be heard

83
( ii) judgment in default of pleading by the government is prohibited, but not judgment after
hearing
c. Before a default judgment is entered the plaintiff must move court for leave to enter a
default judgment by way of a formal application by chamber summons with a valid
affidavit
Agasa Maingi V AG
This is an application by way of chamber summons brought under the provisions of rule 6 of
the Civil Procedure (Government Proceedings) Rules and O.11 r.6 of the Civil Procedure
Rules for orders that: Judgment in default be entered against the respondent/defendant.
HELD; It is clear therefore that the application was brought in court in conformity with rule 6
of the Civil Procedure (Government Proceedings) Rules. The Attorney General though served
did not appear in court. On this ground alone the application would succeed.
d. The application must be served on the AG at least 7 clear days before the date of
hearing the application and if upon hearing the application the court is satisfied that no
sufficient cause exists for the failure to enter appearance by the AG it would grant
leave and proceed to enter a default judgment.
Agasa Maingi V AG , in an application to enter default judgment against the attorney

General, court found that The chamber summons was filed in court on 21/2/2002. The
affidavit of Hashan Kiyimba shows clearly that he took the summons to the chambers of the
Attorney General on 21/2/2002 and was told to go back. He returned to the chambers of the
Attorney General on 4/3/2002 and a copy of the summons returned to court clearly shows that
it was stamped by the chambers of the Learned Attorney General on that same day. It is clear
therefore that the application was brought in court in conformity with rule 6 of the Civil
Procedure (Government Proceedings) Rules. The Attorney General though served did not
appear in court. On this ground alone the application would succeed.
e. In case of a defendant being the AG, a default judgment cannot be entered by the
registrar if the matter is in the High court as the application for leave is heard and
determined by a Judge unless the judge upon granting leave directs the registrar to
enter a default judgment
Thomas Irumba v AG
84
All four suits had been filed against the Attorney General. No appearance was entered in the
prescribed time whereat the District Registrar entered interlocutory judgments against the
Attorney General in all the four files. No leave of court was sought by the plaintiff and no
service of such application was made on the Attorney General, Later it came to be realised that
the Attorney General had entered appearance and filed written statements of Defence in the
High Court Registry at Kampala. Copies of the same reached the District Registry after
interlocutory judgments had been entered. The District Registrar forwarded the files to the
High Court to make decision or whether the Attorney General is by law at liberty to enter
appearance and file written statements of defence in the High Court registry at Kampala in
suits filed in District Registries
HELD;
According to the Government proceedings Act. Cap,69 the Attorney General may enter
appearance either in the District Registry or in the central office of the High Court in Kampala
and in such a case all steps in relation to the proceedings up to trial shall be taken as though
the proceedings had been instituted in the Central office.
The learned District Delegate erred in law in passing judgment

against the Attorney General in default of appearance without
obtaining leave of the court and having not served the Attorney
General.
Order 36 r3(2) contains another type of default judgment where the ;;that order applies to
ordinary defendants; ………..under the Civil Procdeure (Givernment Proceedings) rules it is
stated that no default judgment can be made against the Attorney General under O. 36
In summary; For default to be entered against the attorney general, the claim must be
liquidated demand, service must be effected with evidence, the 30 days allowing the AG to file
a defence must have lapsed; an application by way of chamber summons with a supporting
affidavit must be made and served on the AG atleast 7 days before the date of hearing. If the
AG does not appear, or appears but does not satisfy why a default judgment should not be
entered, then court shall enter a default judgment. O 9 r 6 or o 36 r3.
Interlocutory judgment.
O.9 r6 provides as follows …Where the plaint is drawn claiming a liquidated demand and the
defendant fails to file a defence, the court may, (subject to proof of effective service,) pass
judgment for any sum not exceeding the sum claimed in the plaint together with interest at the
rate specified, if any .
O.9 r 8 provides;
85
Where the plaint is drawn with a claim for pecuniary damages only or for detention of goods
with or without a claim for pecuniary damages, and the defendant fails or all defendants, if
more than one, fail to file a defence on or before the day fixed in the summons, the plaintiff
may, subject to rule 5 of this Order,(proof of service) enter an interlocutory judgment against
the defendant or defendants and set down the suit for assessment by the court of the value of
the goods and damages or the damages only, as the case may be, in respect of the amount
found to be due in the course of the assessment.
Both rules are based on the fact that the defendant has failed to file a defence. The difference
between these two rules lies in the nature of the claim. Under rule 6 the claim is for liquidated
damages, while under rule 8 the claim is for pecuniary damages. Pecuniary damages require
formal proof. Liquidated damages are stated in the plaint.
In Concern Worldwide V Mukasa Kugonza
Court stated
A default judgment is entered where there is proof of service and the defendant has not filed a
defence within the specified time. Rules 6 and 8 of order IX of the CPR are relevant. Under
rule 6, where plaint is for a liquidated demand, judgment will be entered for the sums claimed.
However under rule 8, where the claim is for pecuniary damages, the rule requires that an
interlocutory judgment is entered and the suit set down for formal proof. The awards in the
default judgment are not based on any evidence.
An interlocutory judgment is provided for under O.9 r8 and it is only entered subject to the
following pre-conditions being satisfied.
1. The suit must be by Ordinary plaint under O.4r1 O.6r2 and O.7
2. The claim in the plaint must be for pecuniary damages only or for detention of goods
with or without a claim for pecuniary damages
Dembe Trading Enterprises Ltd V Uganda Confidential Ltd
held; The relevant rule for interlocutory judgment is Order 9 rule 8 which applies, to ‘a plaint
drawn with a claim for pecuniary damages only’ or a claim for the detention of goods .
 Before such interlocutory judgment is entered, there must be proof of effective service
of summons and pleadings on the defendant and the time within which the defendant is
required to file a WSD must have lapsed
Magon v Otoman Bank it was held that, the time for filing defence had not expired and
therefore the ex parte judgment should be set aside ex debito justitiae;
86
In Valery Alia v Alionz John court set aside an interlocutory judgment entered when there
was no affidavit of service on the court record. The requirement to file an affidavit of service
on the court record under order 9 rule 5 of the Civil Procedure Rules is mandatory.
 An interlocutory judgment is not a final judgment but an interim judgment on liability.

 It is critical that when an interlocutory judgment is entered, the suit is set down for
formal proof.
Hajji Asuman Mutekanga v Equator Growers
HELD; Where an interlocutory judgment has been entered in favor of the plaintiff, the
question of liability of the defendant is no longer in issue. What is in issue is the assessment of
the quantum of damages. An interlocutory judgment does not entitle the plaintiff, in whose
favor it has been entered to sit cross legged and wait to be fed on a silver plate. He has a duty
to show on the balance of probability that he is entitled to the relief claimed in the plaint. It
follows therefore that once an interlocutory judgment has been entered the plaintiff must cause
the suit to be fixed for formal proof where after a final judgment will be entered by court.
That it is trite law that special damages and loss of profit must be specifically pleaded, as it
was done in the instant case. They must also be proved exactly, that is to say, on the balance of
probability. This rule applies where a suit proceeds inter parties or exparte. It follows that even
where as in the instant case, the defendant neither enters appearance nor files a defence, the
plaintiff bears the burden to prove his case to the required standard. The burden and standard
of proof does not become any less.
Twine Emosi v Tamusuza James
Court found that the D/Registrar entered the interlocutory judgment in contravention
of provisions of the CPR by entering judgement under Order 9 rule 6, yet the claim was not
liquidated. That although he entered judgment under the wrong provision, realising 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 order 9 rule 7 CPR. The
judge found that entering judgment under Order 9 rule 6 was only irregular and the irregularity
was not a material one because thereafter the court followed the correct procedure when the
suit was set down for assessment of damages.
87
The possibility of obtaining both default judgment and interlocutory judgment in one
suit.
 O.9 r8 and 8 appear to provide for different circumstance under which the interlocutory
or default judgment may be entered by court R.6 restricts a default judgment to a
liqudated demand and R8 restrict an interlocutory judgment for pecuniary claim for
damages or detention of goods but none of the two provide for a combination of both
liquidated and unliquidated demands in the same suit.
Dembe trading enter v Uganda Confidential J. Engonda Ntende
HELD; The rules do not provide specifically for cases where there is a conjunction of claims
for both liquidated demand and pecuniary damages and the defendant does not file a defence.
Is it possible to apply both rules 6 and 8 conjunctively? That is to disaggregate the claims in
the plaint, and apply rule 6 to those claims to which it applies, and apply rule 8, to that part of
the claim to which rule 8 may presumably apply. This may not be possible given the wording
of rule 8, which refers to ‘a plaint drawn with a claim for pecuniary damages only’. Rule 8
appears to be restricted in application to plaints in which there is a claim for pecuniary
damages only or for the detention of goods. If the plaint in question has other claims or has
other claims coupled with these claims, it cannot fall within the operation of rule 8, which is
restricted to a plaint a claim for pecuniary damages only, in the context of this suit.
In this case, it appears that the wording of the two sections clearly delineates which category
of cases fall under which rule, and the categories are so distinct, as not to fall into either
category. Our rule 6 is restricted to liquidated claims, which basically are specified sums of
money in the category of debts or an already ascertained sum of money due to one from
another by the time the suit is filed. Rule 8 would refer to claims for damages only, ascertained
or unascertained, but which must be proved before a court of law, and an award of the same
made accordingly. Viewed this way, both rules provide for different categories of claims.
. In the case at hand, the plaint has coupled or conjoined the liquidated demands and pecuniary
damages. In such a situation rule 8 would be inapplicable, given that in the context of this
case, it applies only when the claim is for damages only. That rule would not apply in the case
of conjoined claims. Should plaintiff drop the claim for general damages, rule 6 may apply and
the plaintiff may obtain final judgment on the liquidated claims, if it has complied with Order
9 Rule 5 of the Civil Procedure Rules
 It follows therefore that where the claim is for both liquidated and unliquidated
demands, the court can only grant a default judgment in respect of a liquidated demand
and the plaintiff may elect whether to abandon the unliquidated claims or apply for an
interlocutory judgment under O.9r8
88
There has been a shift from the decision in Dembe to the effect that both liquidated and
uliquidated claims can be obtained from the same plaint.
Valery Alia v Alionzi John
The plaintiffs claim against the defendant is for the payment and or recovery of Uganda
shillings 138,100,000/= being the amount due on a lease contract for two motor vehicle trucks
and Uganda shillings 31,150,000/= special damages.
HELD
Madrama J
In this case, the hire of the vehicles was for a definite amount and the sums under that claim
constitute liquidated damages.
The judge referred to his decision In the case of Uganda Baati versus Patrick Kalema High
Court, Commercial Division, Civil Suit Number 126 of 2010 where he noted that where
there is a claim for liquidated damages together with a claim for pecuniary damages, the
registrar can enter default judgement in respect of the liquidated demand and set down the suit
for assessment of damages in respect to the claim for pecuniary damages.
The plaintiff is entitled to a final judgment against the defendant in respect of a liquidated
demand even if there is a claim for pecuniary damages in the suit. In other words, the deputy
registrar can enter final judgment for the liquidated demand and set up the claim for pecuniary
damages for formal proof after entering interlocutory judgment in respect thereof.”
The judge’s relied on the following case; he stated.
The application of the rules in cases of liquidated demands and pecuniary damages, as
distinguishable grounds of claims in an application for judgment in default of a
defence, was considered in the case of Abbey Panel & Sheet Metal Co Ltd v Barson
Products (a firm) [1947] 2 All ER 809 per Somervell LJ. at page 809:
“...In the second place, where a plaintiff is claiming pecuniary damages plus a
liquidated demand and does not exercise his right to sign final judgment in respect of
the latter, but signs an interlocutory judgment in respect of the whole claim, I do not
think the defendant can claim to have the final judgment which is subsequently given
set aside as irregular. Under the rules, the plaintiffs are entitled to final judgment
against the defendants in respect of the liquidated demand covered ex hypothesis by the
final judgment. It may be that the court could itself take the objection when the inquiry
takes place and make the plaintiffs sign a separate final judgment in respect of the
89
liquidated demand, but, if the court includes the liquidated demand in the final
judgment, I can see no grounds for allowing the defendants to challenge the judgment
in respect of an amount included in it for which, under the rules, the plaintiffs were
clearly entitled to a final judgment against them.” (Emphasis added
Evershed LJ at page 810
“The intended scope and purpose of RSC, Ord 13, rr. 3–7 inclusive, appear to me to be
reasonably plain. They provide that where a plaintiff has in his writ made a claim
against a defendant for one or more of the following, viz, (a) a debt or liquidated
demand, (b) detinue, and (c) pecuniary damages, and such defendant, though properly
served, does not choose to appear to the writ, then the plaintiff may, without having to
take any further steps against that defendant, obtain judgment against him for his
claim—in the case of a liquidated demand, a final judgment; in the other cases, an
interlocutory judgment subject to assessment by the court of the monetary amount he is
entitled to recover.” (Emphasis added
National Social Security Fund versus Kisubi High School civil suit number 440 of 2011
HELD; As noted above this suit proceeded under order 9 rules 8 of the Civil Procedure Rules.
Learned counsel for the plaintiff referred me to the decision of this court in Valery Alia Vs
Alionzi John HCCS No 157 of 2010. I only need to re-emphasise the principles stated in that
case. In cases where a plaintiff’s action includes a liquidated demand as well as a claim for
pecuniary damages and the defendant does not file a defence to the action, the plaintiff would
be entitled to final judgement under order 9 rule 6 of the Civil Procedure Rules with respect to
the liquidated demand and interlocutory judgement with respect to the claim for pecuniary
damages. The plaintiff obtains judgment upon compliance with order 9 rule 5 of the CPR by
filing an affidavit upon the court record to prove that service was made on the defendant and
that the defendant failed to file a written statement of defence within the time limited by the
summons. I quoted from Stroud’s Judicial Dictionary where the term "liquidated demand"
was defined 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. A final judgment may be obtained on the liquidated demand in the same
suit where there is a claim for pecuniary damages. Therefore a final judgement is entered for
the liquidated demand and an interlocutory judgement is entered for the pecuniary damages
which would then be set down for formal proof.
Rule 6 does not restrict a plaint to a claim for liquidated demand only for it to be applicable. In
other words, a liquidated demand even if coupled with other claims in the plaint, may attract
rule 6 for a final judgement to be entered without prejudice to the other claims in the same
plaint.
90
Rule 8, allows the court to enter interlocutory judgement against the defendant where there is a
claim for pecuniary damages only or for detention of goods with or without a claim for
pecuniary damages where no defence has been filed by the defendant. The words "pecuniary
damages only" seem to suggest that interlocutory judgement may only be entered where there
is a claim for pecuniary damages only or for detention of goods with or without a claim for
pecuniary damages. This rule does not encumber order 9 rules 6 which permit the entering of a
final judgement with regard to the liquidated demand. Even if it did restrict the entering of an
interlocutory judgement to cases where there is a claim for pecuniary damages only, the rule
can be strictly interpreted to mean that interlocutory judgement may only be entered with
respect to "a claim for pecuniary damages" or in the case of "detention of goods with or
without a claim for pecuniary damages". In other words the rule does not restrict other kinds of
claims in the same plaint where there is also a claim for pecuniary damages. It is only in
respect of the pecuniary damages that interlocutory judgement may be entered (of course also
with regard to a claim for detention of goods as specified in the rule).
This case was quoted recently in;
Lloyds Forex Bureau v Securex Agencies; J Madrama considered the position as follows.
The plaintiffs action is for recovery of Uganda shillings 50,142,000/= plus interest, damages
and costs of the suit.
HELD
It is clear that the plaintiff’s action is for a liquidated demand plus interest and costs of
the suit. Only claims for pecuniary loss or general damages require formal proof. This is
however optional. The plaintiff would have been entitled to judgement on a liquidated
demand under order 9 rules 6 of the Civil Procedure Rules which applies to a plaint
drawn and claiming a liquidated demand where no defence is filed.
The rule does not provide that it is applicable where the plaintiff is claiming a liquidated
demand only. It also applies to a plaint where there is a liquidated demand and some other
claim not being a liquidated demand. Consequently, even if a liquidated demand is coupled
with another claim, order 9 rules 6 may attract judgment upon default of the defendant to
file a defence within the prescribed time.
Secondly Order 9 rule 8 on the other hand deals with a claim for pecuniary damages only 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. The rule permits the court to enter interlocutory judgement against the
defendant where there is a claim for pecuniary damages only or for detention of goods
with or without a claim for pecuniary damages. This is where the defendant fails to file a
defence within the period prescribed in the summons.
91
In this case, the plaintiff’s action is not for pecuniary damages only. It is a claim for a
liquidated sum coupled with the claim for pecuniary damages.
There is judicial precedence the effect that a final judgement may be entered in respect
of a liquidated demand and an interlocutory judgement entered in respect of the claim
for pecuniary damages claimed in the same plaint. This was held by Evershed LJ in the
case of Abbey Panel & Sheet Metal Co Ltd v Barson Products (a firm) [1947] 2 All ER
809 at page 810:
“The intended scope and purpose of RSC, Ord 13, rr. 3–7 inclusive, appear to me to be
reasonably plain. They provide that where a plaintiff has in his writ made a claim against a
defendant for one or more of the following, viz, (a) a debt or liquidated demand, (b) detinue,
and (c) pecuniary damages, and such defendant, though properly served, does not choose to
appear to the writ, then the plaintiff may, without having to take any further steps against
that defendant, obtain judgment against him for his claim—in the case of a liquidated
demand, a final judgment; in the other cases, an interlocutory judgment subject to
assessment by the court of the monetary amount he is entitled to recover.”
His Lordship held that judgement in default is entered for a liquidated sum while
interlocutory judgement is entered in respect of the claim for pecuniary damages.
This in a nutshell gives a right to a plaintiff to proceed under order 9 rules 6 and 7 with
regard to a claim for liquidated damages and order 9 rule 8 of the Civil Procedure Rules in
respect of a claim for pecuniary damages or detention of goods with or without a claim for
pecuniary damages in the same plaint. In other words the plaintiff is entitled to judgement
on the liquidated sum and the proceedings for formal proof will only be for general
damages.
The application is by way of letter; NBS v UBC.
 Rule 10 of O 9 permits a suit where there is default, to proceed as if that defendant has
filed a defence.
 A defendant is not entitled to be served with any notice of a hearing because they have
excluded themselves from the process.
Ex parte judgment
 An ex parte judgment may be obtained under two circumstances, on the basis of the
fact that such judgment is entered against the defendant who has not entered
appearance.
92
 Under O.9 r11[2] the plaintiff must move court by way of an application by chamber
summons to grant leave to the plaintiff to proceed ex parte. Before court grants such
Order [ex parte order] it must be satisfied.
a. That the defendant was dully served with summons and pleadings
b. There is evidence of such service by way of affidavit of service [O.5r16
c. The time within which the defendant is supposed to have filed a WSD must have
lapsed
 It is not a requirement under O.9r11[2] to serve the defendant with the notice of
hearing [compare O.9r11[1]
The above provisions were interpreted in the case of
Twine Amosi v Tamusuza James J Irene Mulyangonja where the applicant failed to file a
Written Statement of Defence and the case was heard ex parte. He complained that no hearing
notice was served on him and that the court went on to hear the suit without notifying him that
the suit had been transferred to another court
HELD;
Under Order 9 rule 11 (1) CPR , notice of the hearing of the suit is to be served on a party
who has filed a defence, not on one who failed to filed his/her defence as required by the
summons issued to him/her. When he failed to file a defence, the defendant/applicant opened
the door for the plaintiff to proceed ex parte in the suit which he did under the provisions of
Order 9 rule 11(2).
That It is important to note that as opposed to rule 11(1), rule 11(2) of Order 9 does not
require the plaintiff to give notice to a defendant who has failed to file a defence. The suit
proceeds ex parte, that is in the absence of the other party, the defendant. I therefore cannot
fault the respondent or the trial court for proceeding to hear the suit in the absence of the
applicant. That being the position of the law on that point, it automatically follows that there
was no obligation on the court or on the respondent to notify the applicant that the suit had
been transferred to another court either.
 The plaintiff does not obtain an ex parte judgment merely on account of the defendant
failing to file a defence but only obtains an ex parte order which allows him or her to
proceed ex parte.
Abendego Absolom Ongom Vs. Amos Kaheru.
Whether because the defendant has not come to court to lead evidence to contradict the
plaintiff's case therefore remedies may be granted as prayed?
93
Held: Where a defendant does not appear, having filed a Written Statement of Defence and
the trial proceeds ex parte, remedies cannot be granted to the plaintiff just as prayed unless
they are sufficiently supported by the pleadings.
 The application for an ex parte order may be made in writing by formal letter or other
standard form or may be informally made before court when the matter comes up for
mention
 Once the matter is fixed for hearing the plaintiff must file a scheduling memorandum
or schedule in court, must lead evidence through the relevant witnesses, must make
appropriate submissions and the court will enter judgment accordingly in favour of the
plaintiff, if such plaintiff has proved his or her case
 An exparte judgment may also be entered pursuant to proceedings under O.9r20[1].

Under the said Rule the plaintiff must prove evidence of service of summons [hearing
notices] upon the defendant on the basis of which the application is made for an ex
parte Order that allows the plaintiff to proceed with the hearing.
 Where the court is satisfied that there was effective service may grant the ex parte
order and the plaintiff may proceed with the hearing
Fred Hereri. v AG
Court found that the plaintiff presented a claim against the defendant for special, general and
extemporary damages, for wrongful arrest and false imprisonment. Summons to enter
appearance were issued on 9th January, 1996. The defendant filed a memorandum of
appearance on 16th April, 1996. He then kept quite. On 18th November, 1999, the case was
called for scheduling conference. On that day, the plaintiff and his counsel appeared in court.
There was evidence of proper service to both parties. A hearing date was fixed for 27th
January, 2000. The defendant was duly served with a hearing notice for that date. Again the
defendant did not appear in court and no reason was given. It so happened coincidentally, that
the trial judge was also on leave. The hearing of the case was, therefore, adjourned to 28th
February, 2000. The defendant was again duly served but did not appear again.
In these circumstances, Court ordered that the case proceed ex-parte in accordance with
Order 9 rule 20(a) of the Civil Procedure Rules.
Departed Asians Property Custodian Board v Issa Bukenya (SCCA

No.18/91)(unreported). The appellant in this case was the defendant and an ex parte judgement
94
was entered against it. It applied to set aside the judgment and the application was dismissed
on the grounds that no good or substantial reasons had been given to justify setting aside the
decree. On appeal it was held that for an application to set aside an ex parte deree to succeed,
the applicant must show that summons had not been duly served or was prevented by
sufficient cause from appearing at the date fixed for hearing.
Judgment of admission
 Judgment on admission is provided for under O.13 r6 of the CPR. It connotes the type
of judgment that may be entered in respect of the entire claim or part thereof where the
defendant admits a claim or part of the claim.
Ziraguma Emmanuel v Nkoyoyo
Court found that in the instant case, the nomination and election of Rev. Canon David
Sebuhinja as Bishop-Elect is not being contested. In his own words Counsel for the defendant
submitted that the election of Sebuhinja is not an issue. Similarly, the fact that the Bishop-
Elect is entitled to consecration and enthronement is not in issue. What is in issue is why he
has not been consecrated and enthroned and when he will be consecrated and enthroned. Thus
court found it just upon the said application, to make an order that Rev. Canon David
Sebuhinja was duly nominated and elected as Bishop-Elect of the diocese of Muhabura and
that he was entitled to consecration and enthronement. Those orders are based on the above
admissions and they do not dispose of the issues framed for determination.
 From the wording of O.13r6 a judgment on admission may be entered under the
following circumstances
1. The admission must be made of facts that relate to the claim or part thereof.
2. The admission must be by a party to the suit or even any lawful agent of such a party
e.g. a director making an admission on behalf of a company.
Agasa Maingi v AG
The Attorney General though served, did not file a defence. The applicant applied for default
judgement or in the alternative judgement on admission basing on an admission made by the
IGG.
95
HELD; The application in the alternative is utterly misconceived
Surely the admission referred to must be the admission of one of the parties to the suit. The
Inspector General of Government is not a party to this suit. How then can his alleged
admission bind the Attorney General? I find such proposition to be idle and utterly
nonsensical. That said judgment in default will be entered as prayed with costs.
3. Admission may be in form of pleadings or otherwise.
Eriaza Magala Vs Rev. Kefa Sempangi (1994) I KLAR 93
Held: Under O.11 r6 (now O 13 r11) court has wide discretion to give judgment for relief
prayed for by a party if the opposite party admits it. Admission can be by pleading or a letter,
the essential point to note is that for a judgment to be given the admission to which such
judgment can be claimed must be unequivocal. In the instant case the defendants in their
WSD denied the plaintiff's claim and the letter referred to did not admit liability clearly or
unequivocally or at all. The application was misconceived and must be rejected.
4. The admission must be unambiguous or precise and static. If the admission is

ambiguous or uncertain the court is likely to reject the judgment on admission and find
that the matter be prosecuted in the normal manner.
Juliet Kalema v William Kalema
HELD; Per BYAMUGISHA, JA;
The object of Order 13 r11, is to enable a party to obtain judgement speedily at least to the
extent of the admissions. Such admissions can be made on the pleadings or verbally because of
the use of the word "otherwise" in the rule. The rule is for the benefit of both parties. However,
before the court can act under the rule to enter judgement, the admissions of the claim must be
clear and unambiguous. In a case involving complicated questions, which cannot be disposed
of conveniently, the court should decline to exercise its discretion against the party who is
seeking judgement on admissions. The power given to court to enter judgement on admissions
is a discretionary one that must be exercised judiciously and circumspectly.
The alleged admissions by the appellant were not as clear cut and unambiguous to entitle the
respondents to judgment. She did not admit that she was intermeddling in the affairs of the
estate. She did not admit that she had committed fraud or that she was trespassing on the suit
96
property. She did not admit that her occupation of the house is wasteful of the estate,
unjustified, unlawful and unreasonable. The learned judge, with respect failed, to exercise her
discretionary powers judiciously in this matter when she entered judgement in favour of the
respondents. Accordingly ground six would succeed.
 The judgment may be entered at any stage where the admission is made without the
necessity of completing the hearing
Central Electrical International v Eastern Builders and Engineers
This was an application for judgment on admission. An admission of indebtedness to the

Applicant/Plaintiff had been made by the Defendant/Respondent in its pleadings in another
case vide their plaint in H.C.C.S. No. 856 of 2005.
Held;
The rule enables either party at any stage of the suit to apply for judgment on the
admission which have been made by the other party. However, a judgment on
admission is not a matter of right but at the discretion of the Court. If a case involves
questions which cannot be conveniently disposed of on a motion under this rule, the
Court may in the exercise of its discretion, refuse the motion.
In Wright Kirke Vs North (1895) Ch 747 it was stated at page 50:-
“The obtaining of such an order was not a matter of right, but was a matter
for the exercise of a judicial discretion regard being had to all the
circumstances of the case”
The admission can be in pleadings or otherwise. But such admission must be clear and
unequivocal. See Eriaza Magala Vs Rev. Kefa Sempangi (1994) I KLAR 93
That the admission upon which judgment can be based should be made either on the
pleading or otherwise in the suit before court.
In the instant case the admissions upon which the Applicant based its application were not
made at any stage of this suit but made in 2005 before the filing of this suit and in another suit.
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Neither the pleadings or any of the documents filed by any of the parties in this suit shows an
admission of the Applicant’s claim by the Respondent. The application therefore fails
Consent judgment and compromising a suit.
 A consent judgment arises where parties to a suit agree to settle their disputes on such
terms and conditions as set out by themselves. A consent judgment as a matter of law
constitutes a fresh agreement between the parties which overrides any pleadings or
admissions therein.
Sometimes in the course of a hearing parties agree and when they agree they are permitted
to use that agreement as their decision. Such an agreement should address all the issues
and is thought to have been arrived at lawfully. That agreement is called a consent
judgment. It is not in the form of a detailed judgement but only captures the salient points
over which the parties have agreed. Consent judgment compromises/settles a suit and the
effect of it is that the parties have entered into a fresh contract reflecting a position that
overrides earlier admissions, positions and pleadings on the court record.
Attorney General and Uganda Land Commission v James Mark Kamoga
Held’ It is well settled, that unlike judgments in uncontested cases, consent judgments are
treated as fresh agreements, and may only be interfered with on limited grounds such as
illegality, fraud or mistake.
Wasike v Wamboko[1976–1985] 1 EA 625
The respondent filed a suit in a Resident Magistrate’s court seeking possession of a plot of
land which was occupied by the appellant. The appellant, on the other hand, claimed that she
had entered into an agreement with the respondent for the purchase of the land and that the
respondent had neglected to transfer the land to her. A consent judgment was entered the terms
of which were that the parties were to enter into a fresh sale agreement, the respondent was to
transfer the land to the appellant who would pay the new agreed price and if she failed to pay,
she would vacate the land.
The appellant appealed against the consent judgment arguing, among other things, that she had
not consented to it.
Held:
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It is now settled law that a consent judgment or order has contractual effect and can only be set
aside on grounds which would justify setting a contract aside, or if certain conditions remain to
be fulfilled, which are not carried out.
That a consent judgment or order, whether final or interlocutory, deliberately made with full
knowledge, with the full consent, of the parties or advocates on both sides, is regarded as
having a full binding contractual effect on which the other party is perfectly entitled to insist
and normally it cannot be set aside or varied; if, however, a consent judgment or order is to be
set aside or varied, it can really only be set aside or varied on grounds which would justify the
setting aside or variation of a contract entered into with full knowledge of the material matters
by legally competent persons, such as fraud, mistake, misrepresentation, collusion, duress,
undue influence, agreement contrary to the policy of the court, lack of capacity of parties,
misapprehension or ignorance of material facts, or if certain conditions remain to be fulfilled
which are not carried out;
 There are two ways in which a consent judgment may be recorded

1. Where the parties appear before a presiding judge or magistrate to read out the terms
agreed upon which are recorded by a judicial officer and judgment entered upon such
terms.
2. Where parties execute a formal written consent and present it for endorsement by a
court and once it is signed and sealed by the court it constitutes a binding judgment.
The endorsement may be done by the judicial officer before whom the matter is or the
registrar if the matter is in the high court.
In Betuco (U) Ltd And Another v Barclays Bank Of Uganda Ltd & 3 Others HCT-00-
CC-MA-0243-2009
The applicants applied to set aside the Consent Judgment on grounds that the Directors of the
Applicants signed the Consent Judgment under a mistaken and/or misrepresentation as to the
true contents of the judgment and that the mediation proceedings were so fundamentally
defective that they did not bind the Applicants.
Court quoted Hon Justice Kitumba, JA in Peter Muliira Vs Mitchell Cotts Ltd CACA No. 15 of
2002 where he stated:-
“The law regarding consent judgment is that parties to a Civil Suit are free to consent
to a judgment. They may do so orally before a judge who then records the consent or
they may do so in writing and affix their signatures on the consent. In that case still the
Court has to sign that judgment. A consent judgment may not be set aside except for
fraud, collusion or for ignorance of material facts.”
Court thus held that When any agreement is reached the rules provide that it shall be signed
by the parties and filed with the Registrar for endorsement as a Consent Judgment . A consent
judgment once recorded or endorsed by the Court it becomes the judgment of the Court and
99
binding upon the parties. It is an agreement or contract between the parties. As such it can only
be set aside for a reason which would enable the court to set aside or rescind on an agreement.
In, British American Tobacco (U) Ltd v Mwijakubi & 4 Ors (CIVIL APPEAL NO 01 OF
2012) [2013] UGSC 13; there was an appeal before the Court of Appeal and the parties
entered into a compromise agreement before the ruling was made. However, the agreement
was not signed nor sealed by the registrar of court by the time the ruling was made. It was held
that there was no valid compromise settlement and consent order because it was not signed.
KCCA and Stanbic Bank v Johnson Mugisha.
HELD;
Parties to a suit are free to settle their disputes and reach an agreement out of court. When such
an agreement is signed and sealed by court, it constitutes a Consent agreement/judgment from
which a decree may be extracted.(See Peter Mulira Versus Mutual Courts Court of Appeal
Civil Appeal No.15 of 2002). I agree with the contention of counsel for the respondents that
such a judgment cannot be set aside unless it is entered into by fraud or misrepresentation.(See
Musa Nsimbe Versus Joseph Nanjubu; Misc application No.360 of 2012). From looking at
the Settlement and Release Agreement on record, it appears to me that Counsel for both the
appellant and the respondents signed the agreement, but it was neither registered nor endorsed
by court. This cannot be said to be a consent judgment within the meaning of the law. The said
agreement can only become property of court upon being endorsed and registered by court. I
therefore find that the Settlement and Release Agreement dated 21st March, 2006, could not
legally form a basis for the commencement of garnishee proceedings in court.
 A consent judgment may be entered for purposes of a compromise of the suit, settling
only parts of the claim and the rest of the claims being subjected to further litigation
O.26. Whatever the nature of the settlement, the decision must be legally sound. For
example you can’t decide that a particular officer can’t be liable when the law says he
can.
Bank of Baroda v Ataco Freight Services.
100
Held; The purported compromise did not adjudicate on whether the appellant was liable to the
respondent as claimed. Instead what was recorded as a compromise related to issues not
connected with those in the suit and cannot compromise the suit. Therefore there was nothing
to bar the suit from proceeding.
 A consent judgment is binding not only between the parties thereto but between the
third parties if the terms therein extends to them subject of their right to challenge that
consent
George William Katelega v Commissioner Land Registration
Counsel for the applicant submitted that Civil Suit No. 85 of 2005 was settled by consent
agreement of the parties thereto, and that the Applicant was not a party to the said consent
agreement, hence cannot be bound by the judgment. Counsel further submitted that the consent
judgment binds only parties privy to it and cannot be a judgment in rem.
Held; Even if the judgment was as a result of the parties’ consent agreement, still the
Applicant would be bound by the resultant consent judgment for as long as it received the
sanction of the court; for then it would be regarded as judgment of the court. The judgment in
Civil Suit No. 85 of 2005 amounted to a judgment in rem because it determined the rights of
persons in respect of the suit land and as a consequence determined the status of the same suit
land by cancelling and revoking all titles created therefrom including that of the Applicant.
The proprietary status of the suit land was thus affected as were all persons interested in the
suit land regardless of whether they were parties to the suit or not.
That a judgment in rem binds all person even when they are not parties to the proceedings and
are stopped from averring that the status of persons or things, or the right to title to property
are other than what the court has by its judgment declared it to be. Similarly, in the instant
case, since the judgment in Civil Suit No. 85 of 2005 amounted to a judgment in rem, logically
it was binding as against all parties to the suit and third parties, including the Applicant, and
conclusive as against the whole world that the entities ordered as affected by order of court
were so entitled or disentitled, as the case may be, regardless of whether they were parties to
the suit or not.
 Parties cannot by consent reverse a judgment of the court.
In Uganda Broadcasting Corporation v Sinba K ltd
Parties entered into a consent to dispose of an appeal. Issue whether or not the appeal could
have been settled by consent.
Held;
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Parties are free to settle or compromise suits at the High Court and at Magistrates Courts
because at that stage, the suits are not yet heard and the disputes are not yet determined. On
appeal this is not so. There is already a judgment or ruling of the lower court and parties
cannot by agreement reverse or vary it.
, that once the appeal has been called for hearing the appellant may not withdraw it even with
consent of the respondent.
The appellant may then only withdraw it with the consent of Court. In that case therefore the
appellant who intends to withdraw an appeal which has already been called for hearing has to
make a formal application which would have to be heard and determined by the Court hearing
the appeal and not by a Registrar.
The consent judgment in this application was therefore irregular and unlawful in so far as it
attempted to have an appeal withdrawn by consent in contravention of Rule 94 of the Rules of
this Court.
Court went ahead to consider the effect and legality of a consent decree on appeal by quoting
the decision of the Court of Appeal in Edith Nantumbwe & 3 others versus Miriam
Kuteesa, Court of Appeal Civil Appeal No. 294 of 2013.
This court observed and held as follows at P.19
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 judgments on appeal, as far
as we could ascertain. This proposition of the law is set out in Slaney versus 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
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decision below was wrong and it would be doing this merely on agreement of the
parties and without hearing the case”
“The general rule is, as we know, that an appeal could not be allowed by consent without
hearing it
“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 the appeal.
(3) Issues of law cannot be subject to consent orders”.
An example of a consent decree. In UBC v Sinba
NB; the heading is missing
“Consent Judgment”
By consent of both parties it is agreed that this Appeal be settled and judgment is
hereby entered by consent in the following terms:
1. That the 1st Respondent pays to the 1st Appellant the sum of UGX
11,500,000,000/= (Uganda Shillings Eleven Billion Five Hundred Million only)
less the taxed costs in HCCS No. 326 of 2011 within 60 days from the date
hereof.
2. The Appellants shall jointly and/or severally surrender all interests in the suit
property and hand over the certificate(s) of title to the entire suit property i.e.
the land comprised in Freehold Register Volume 211 Folio 18 Plots 8-10, 12-
16 and 18-20 Faraday Road Kampala measuring approx.23.1 acres to the 1st
respondent within a period of 60 days from the date hereof.
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3. The Appellants hereby withdraw the above appeal.
4. Each party to this settlement shall bear its own costs of the appeal.
5. This consent judgment settles the entire dispute between the parties.
DATED at Kampala this 16th day of April 2013.
______________________ _______________________
HABA GROUP (U) LIMITED UGANDA BROAD CASTING

CORPORATION
FIRST APPELLANT FIRST RESPONDENT
________________________ _______________________
DEO & SONS PROPERTIES LTD KIHIKA PAUL
SECOND APPELLANT SECOND RESPONDENT
________________________
________________________
COUNSEL FOR THE 1ST APPELLANT COUNSEL FOR THE 1ST
RESPONDENT
__________________________
_________________________
COUNSEL FOR THE 2ND APPELLANT COUNSEL FOR THE 2ND

RESPONDENT.
GIVEN under my hand and seal of this Honourable Court this 19th day of April 2013.
........................
REGISTRAR.
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SETTING ASIDE OF JUDGMENTS AND DECREES
Effect of judgment
 Where a judgment is passed against a party to the suit, that judgment is binding on such
a party and any other party to whom it relates unless and until set aside, reversed or
otherwise varied
George William Katerega v Commissioner Land Registration
Held; That a judgment in rem binds all person even when they are not parties to the
proceedings and are stopped from averring that the status of persons or things, or the right to
title to property are other than what the court has by its judgment declared it to be
 A judgment of a court however irregular it may be is binding and enforceable unless

any party aggrieved with it exercises a right to challenge it by seeking any of the cost
judgment reliefs
In Hamutenya v Hamutenya, it was held; An order of a court of law stands until set aside by
a court of competent jurisdiction. Until that is done the court order must be obeyed even if it
may be wrong
Arim Felix v Stanbic Bank held that that the respondent had a duty and obligation to obey a
court order. It was not open to him to disregard it whether or not it contained errors minor or
major. It cited the case of Housing Finance Bank Ltd and Another vs Edward Musisi Court
of Appeal (Miscellaneous Application No. 158 of 2010) for the position that a party who
knows an order whether null and void, regular or irregular cannot be permitted to disobey it
 A party aggrieved with the judgment is under an obligation either to comply with it or
seek to set it aside in appropriate proceedings
Kahumbu v National Bank of Kenya 2003) 2 EA 475
Held – A court order is valid and binding unless and until it is appealed against, amended or
set aside.
Setting aside of judgments and decrees under o.9r12
 O.9 r12 empowers court that has entered judgment to pass a decree, pursuant to any of
the pre-ceding rules to the order or the judgment in an uncontested matter under O.50
to set aside such a judgment or otherwise vary the same on such terms and conditions
as the court may deem fit
 Under O.9 r12 whereas the marginal note suggests that setting aside is restricted to ex
parte judgments the rule itself provides that the judgments capable of being set aside
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thereunder includes a default judgment under O.9 r6-7 an interlocutory judgement
under O.9 r8(1) and an exparte judgment under O.9 r11[2]
Also consider rule 27 which provides that
In any case in which a decree is passed ex parte against a defendant, he or she

may apply to the court by which the decree was passed for an order to set it
aside; and if he or she satisfies the court that the summons was not duly served,
or that he or she was prevented by any sufficient cause from appearing when
the suit was called on for hearing, the court shall make an order setting aside
the decree as against him or her upon such terms as to costs, payment into
court, or otherwise as it thinks fit, and shall appoint a day for proceeding with
the suit;
Order 9 r 12 is wider than rule 27; rule 27 is abit narrower in its application.
DAPCB v Uganda Blanket Manufacturers [1973] LTD (1982) HCB 119
 Held; Rule 12 of Order 9 has wider application than rule 27 thereof. Although the
marginal notes to it referred on ex parte judgment, it empowers a court to set aside any
judgment passed in pursuance of any of the preceding rules of that order whether
judgment was ex parte or not. Similarly the courts discretion is unlimited as to reasons
for setting aside a judgment.
Tweheyo Edison v Barurengyera Kansiime
Held; The rule cited above bestows on court wide discretion to set aside exparte judgment, but
in doing so, the court must be satisfied that to do so would meet the ends of justice given the
circumstance of the case
 The Rule also extends to judgments entered by the registrar in un-contested cases but
does not extend to consent judgments under O.50
The Supreme Court had held in Ladak Abdulla Mohamed Hussein v Griffiths Isingoma
Kakiiza that; Order 9 r.9 (now O.9 R12) is not restricted to setting aside exparte judgments
but covers consent judgment entered by the registrar. It gives the court unfettered discretion to
set aside or vary such judgments upon such terms as may be just.
However, this position was qualified in Attorney General and ULC v Henry Kamoga where
it was held that; that the unfettered discretion under r. 12, is not intended to apply to consent
judgments. The judgments entered by the registrar under Order 50 that may be set aside under
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rule 12 of Order 9, are those similar to those passed under rules 6, 7 and 8 of Order 9, namely
ex parte judgments.
Per Mulenga;
The rules preceding rule 12 pursuant to which judgment may be passed are rules 6, 7 and
8. They all provide for entering judgment or interim judgment where the defendant fails to
file a defence within the prescribed time. Under Order 50 rule 2 the registrar may enter
two categories of judgments, namely judgments in uncontested cases, and secondly, in
cases where the parties consent to judgment on agreed terms. On the face of it, the
expression “where judgment has been entered by the registrar in cases under Order 50”
appearing in r.12 covers both categories of judgments. However, it is well settled, as I will
elaborate later in this judgment, that unlike judgments in uncontested cases, consent
judgments are treated as fresh agreements, and may only be interfered with on limited
grounds such as illegality, fraud or mistake. Because of that, I am unable to agree that the
unfettered discretion under r. 12, is intended to apply to consent judgments. In my view,
the better interpretation is to apply the ejusidem generis rule, and hold that the judgments
entered by the registrar under Order 50 that may be set aside under rule 12 of Order 9, are
those similar to those passed under rules 6, 7 and 8 of Order 9, namely ex parte judgments.
This view is fortified by the wording of the head note to rule 12 of Order 9, which
specifically indicates that the rule relates to ex parte judgments. It is also significant to
note that consent judgments are not always entered by the registrar. A trial judge may
record a consent judgment where the parties agree to settle the case before him/her.
Obviously, such consent judgment entered by a judge does not fall within the ambit of
Order 9 r.12. I think it cannot be right to hold that in reviewing or setting aside consent
judgments the court would have different considerations regarding those entered by the
registrar and those entered by a judge.
 The Rule and remedy may be invoked by any person who is aggrieved by the judgment
or decree including a third party
Ladak Abdulla Mohamed Hussein v Griffiths Isingoma Kakiiza
HELD; The rule is not restricted to parties to the Suit but includes any person who has a direct
interest in the matter, who has been injuriously affected.
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 The Applicant must however be legally aggrieved in the sense that the judgment or
decree affects his or her legal or equitable interest in the subject matter of the suit.
Proline Soccer Academy V Lawrence Mulindwa and Ors.
Held; For there to be an aggrieved person means that the matter must directly affect the
applicant in some way, however small.
 O.9 R12 does not define the grounds upon which a judgment can be set aside implying
that it confers upon the court unfettered discretion to either allow or disallow the
application.
The Cooperatrive Bank Ltd (In Liquidation) Vs. Amos Mugisa
Held; The decision under O.9 rule 12 CPR rests entirely upon the discretion of the court.
In the case of Mbogo and another –Vs- Shah [1968] EA 93 (CA). It was held that order 9
rule 12 gives the High Court an 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 Emiru
Angose V Jas Projects Ltd quoting Henry Kawalya –Vs- J. Kinyakwanzi [1975] HCB 372.
Where Ssekandi Ag. J (as he then was) held;
“An exparte Judgment obtained by default of defence 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 power to dissolve such Judgment which is not pronounced on the
merits of the case or by consent but entered especially on failure to follow procedural
requirement of the law”.
Jessy Technical Services Ltd & Anor v Ajay Industrial Corporation Ltd & Anor
Held; Rule 12 gives the court wide discretion to set aside a judgement in default of filing a
defence. Such a judgement is not on the merits and is based on the failure to follow a
procedural requirement of the law.
 The applicant must never the less demonstrate by affidavit evidence or otherwise that
there was sufficient cause that prevented him or her from entering appearance which
led to the judgment being entered against him or her in their absence.
In Tweheyo Edison v Barurengyera Kansiime
Held; The rule cited above bestows on court wide discretion to set aside exparte judgment, but
in doing so, the court must be satisfied that to do so would meet the ends of justice given the
circumstance of the case. The circumstances that warrant setting aside an ex parte judgment
are similar to those under Order 9 r.27 CPR. Firstly, court will usually set aside the exparte
108
judgment where it is proved that there has been no proper service. Secondly, the defendant
must demonstrate; not only that he or she was prevented by sufficient cause from filing a
defence within the requisite period, but also that there is merit in the defence to the case.
 The applicant may therefore prove that there was no service of summons and pleadings
or such service was ineffective and not in compliance with the law
Jessy Technical Services Ltd & Anor v Ajay Industrial Corporation Ltd & Anor; Court
set aside an exparte judgment having found that there was no proper service on the second
defendant, as service is a fundamental requirement before any order may be made against a
defendant
In Emiru Angose V Jas Projects Ltd court set aside an exparte judgment after it was proved
that there was no effective service summons on the applicant. That service is to be effected on
the defendant in person or an agent empowered to accept service. In that case service on the
receptionist was not service on a recognised agent.
Makerere University v Zescom Technologies Ltd (MISCELLANEOUS APPLICATION

NO. 432 OF 2013) [2014]
Per Hellen Obura;
In the instant case the applicant was never made aware of the suit because the respondent
opted to serve an unauthorized person and so the desired effect which would have been to
file the necessary pleadings to defend the suit was not achieved. The summons was merely
stamped with the applicant’s stamp but there was no signature of an authorized person
acknowledging receipt thereof. For that reason, I am satisfied that the purported service on
the applicant was not effective and I would be inclined to set aside the ex parte judgment
and decree on that ground alone.
 The applicants must also demonstrate to court that they have a plausible defense or
claim that merits adjudication in a full trial
In Tweheyo Edison v Barurengyera Kansiime
Held; The defendant must demonstrate; not only that he or she was prevented by sufficient
cause from filing a defence within the requisite period, but also that there is merit in the
defence to the case.
Lebel EA ltd v EF Lutwama
109
Held; It is settled law that in deciding an application to set - aside an ex-parte judgment the
court should consider, inter alia, the nature or subject matter of the suit and whether the
applicant has a prima facie defence to the suit.
Patel v Cargo Handling Services (1974) EA 75
Held; the court will not usually set aside the judgment unless it is satisfied that there is a
defence on the merits. In this respect defence on the merits does not mean, in my view, a
defence that must succeed, it means “a triable issue” that is an issue which raises a prima facie
defence and which should go to trial for
adjudication.
 In the determination of the application the court normally considers the conduct of the
applicant before and after judgment.
Patel v EA Cargo Handling Services Ltd[1974] 1 EA 75
Held; There are no limits or restrictions on the judge’s discretion except that if he does vary
the judgment he does so on such terms as may be just. Court agreed with the principle set out
in Mbogo v. Shah, [1968] E.A. 93 that before the court grants an application under this rule,
the court must first be satisfied that in light of all the facts and circumstances both prior and
subsequent and of the respective merits of the parties, it would be just and reasonable to set
aside or vary the judgment, if necessary, upon terms to be imposed.
Mbogo Vs Shah: In this case counsel refused to accept service and then service was effected
by advertisement. No appearance was entered and no defence was filed. Judgment was entered
and the defendant sou ght to set it aside. Held; That O.9 r 9[ 12]bestowed upon court a wide
discretion but the judgment could not be set aside because the applicant had deliberately
sought to obstruct and delay the proceedings. The Judge had set himself the test for exercise of
jurisdiction in the circumstances.
The Test: Held: The discretion is intended to be exercised to avoid injustice or hardship
resulting from accident, inadvertent or excusable mistake or error but is not designed to assist
a person who had deliberately sought whether by evasion to obstruct or delay the cause of
justice.
In exams before proceeding under O.9 r12 you must first know the type of judgment you have.
there are two exparte judgements that can be set aside in 3 different rules
 A default judgment is not judgment on merits and that’s why there are provisions for
setting it aside.
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Zimwe Enterprises v Wavenet held; There seemed to be a liquidated demand and the
decree that was extracted was for a liquidated amount that was purportedly claimed in
the plaint. A default decree is not on the merits
Setting aside consent judgment.
Uganda Air Cargo v Moses Kirunda and Ors.

The consent was signed by all parties to the suit and the suit was settled in those terms as
mentioned above. An application for setting aside the judgment was made on grounds that the
Attorney General entered the consent without instructions.
HELD;
A consent judgment can only be set aside if the consent was actuated by illegality, fraud or
mistake. Consent judgments can be set aside on limited grounds. The Supreme Court in the
Attorney General & Uganda Land Commission Vs James Mark Kamoga (supra) gave
guidance on the law governing setting aside a consent judgment. A consent judgment is not an
exparte judgment.
The principle upon which the court may interfere with a consent judgment was outlined by the
Court of Appeal of East Africa in Harani Vs Kassam [1952] EACA 131, in which it
approved and adopted the following passage from Seton on Judgments and Orders 7th
Edition Vol.1 page 124;
“prima facie, any order made in the presence and with a 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
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 general for a
reason which would enable court to set aside an agreement.”
Reasons that would enable court to set aside an agreement are fraud, mistake, misapprehension
or contravention of court policy.
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Clearly the above background to this application indicates that the arguments by the applicants
are unfounded. There is no way the Attorney General would have appeared in court for over
ten years without instructions. There is evidence that indeed the applicant instructed the
Attorney General to represent it in the civil suit and this was effectively done. Although the
deponent denies giving specific instructions to consent, the law on legal representation is clear.
It was held in BM Technical services Vs Francis X. Rugunda [1999] KALR 821 followed
in Lenina Kemigisha Mbabazi/Starfish Limited Vs Jing Cheng International Trading
Limited, MA 344 of 2012 that:
“……… the court cannot set aside a consent judgment when there is nothing to
show that counsel for the applicant has not entered into it without instructions.
Furthermore that even in cases where an advocate has no specific instructions to
enter consent judgment but has general instructions to defend the suit, the position
would not change so long as counsel is acting for a party in a case and his
instructions have not been terminated, he has full control over the conduct of the
trial and apparent authority to compromise all matters connected with the action.”
The fact that the Attorney General was instructed and given all documents and facts relating to
the respondent’s claim, he had full instructions and apparent authority to compromise all
matters connected with this action. It has not been alleged or proved by the applicants that the
consent complained of was entered through fraud, connivance or absence of material facts.
THE TRIAL AND PRE TRIAL PROCEDURES
CONDUCT OF PROCEEDINGS.
Where proceedings have been closed, the plaintiff has filed his plaint, served the defendant,
the defendant has written his WSD, put a counter-claim, the plaintiff is allowed to file a
defence to the counter-claim or a reply to the WSD if there is no counter-claim, thereby
bringing closer the pre-trial process. On closure of the process, the matter must be set down for
hearing.
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Cause listing of cases and service of hearing notices.
O9 r 11 ; Setting down suit for hearing.

(1) At any time after the defence or, in a suit in which there is more than one defendant, the
last of the defences has been filed, the plaintiff may, upon giving notice to the defendant or
defendants, as the case may be, set down the suit for hearing.
 Even in cases, eg where there is a liquidated claim or a general damages where no

defence is filed and the time has elapsed for filing the defence, the plaintiff may set
down the suit for hearing ex-parte.
 A defendant who wishes to may also set down a suit for hearing if the plaintiff is not
willing. Where both the plaintiff and the defendant may not set down for hearing, the
court may set down the suit for hearing.
 Setting down the suit for hearing is a practical matter involving court issuing a hearing
notice directing the parties. If it’s the plaintiff, he has to serve the defendant, if it is the
defendant, he extracts the hearing notice and serves it on the plaintiff and if its court,
the court serves a hearing notice both to the plaintiff and defendant informing them on
the day, date and place of hearing.
 A hearing notice is a summons which must be signed and sealed by an officer of court,
be it the judge or registrar. It must state the time, place and day and warning the
recipients of the consequences of non-appearing.
 Service is mandatory to ensure that the right to a fair hearing (art 28) is observed and
the rules of natural justice relating to a fair trial.
Twiga Chemicals v Viola Bamusedde
The main ground advanced in support of the application was that the appellant who was the
plaintiff was not aware of the hearing date, as it was not served with any hearing notice. The
application was dismissed on the 26th November 2001- hence the instant appeal.
Held;
That a defendant has no burden to prove that a plaintiff, who is absent when the suit is called
for hearing, was served with a hearing notice. That the law accords greater protection to the
defendant who fails to appear on the date when the suit is called for hearing than the plaintiff.
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It is the plaintiff who drags the defendant to court and therefore it is understandable and
reasonable for the plaintiff who claims to be aggrieved to take steps and fix the case for
hearing.
On the facts, court found that the plaintiff’s counsel was aware of the hearing, and his
knowledge was therefore the knowledge of the appellant under the doctrine that a man or
woman who empowers an agent to act for him/her is not allowed to plead ignorance of his/her
agent's dealings.
Edison Kanyabwera v Pastori Tumwebaze
The main ground of the application was that the defendant was not served with the
hearing notice for the suit. the judge passed an exparte judgment being satisfied that
there was service, however on review it was found that there was no affidavit of
service and the judgment was set aside. The court of Appeal restored the ex parte
judgment and on appeal to the Supreme Court;
HELD;
Order 5, rule 17 of the C.P.R provides that where summons have been served on the
defendant or his agent or other person on his behalf, the serving officer, shall in all
cases, make or annex or cause to be annexed to the original summons an affidavit of
service stating the time when and the manner in which the summons was served and
name and address of the person, if any, identifying the person served and witnessing
the delivery of the tender of the summons. The provisions of this rule is mandatory, it
was not complied with in the instant case. What the rule stipulates about service of
summons, in my opinion, applies equally to service of hearing notices.
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There was no affidavit of service on the record. The absence of such affidavit leads
inevitably to the conclusion that the defendant was not properly served with the
hearing notice before the suit was heard in his absence. The point is that there was no
evidence that the defendant was served at all. Court of Appeal judgment set aside and
the setting aside of the judgment restored.
Kasirye Byaruhanga & Co. Advocates v Mugerwa Pius Mugalaasi (Civil Appeal No. 87
of 2008)
The grounds of appeal were that the learned trial judge erred in law and fact, in that he
wrongly granted the respondent a temporary injunction without any hearing at all and
after verifying that the suit property had already been resold to a third party, and
wrongly made orders relating to the main suit that was not before him at the material
time.
Per Twinomujuni; held
I have looked at the proceedings of the High Court in Misc. Appl. No.444/2008 dated 15th
September 2008. The record reveals a procedure completely unknown and totally unacceptable
in our jurisdiction. Though the proceedings were about an order of injunction, the learned trial
judge delved into too many extraneous matters including the merits of HCCS No.224 of 2008
and totally forgot to deal with the application before him. In the process, both parties were
never allowed to address the court on the matter before it then. It was, to say, the least, an
extraordinary court session, the likes of which I have not come across in the common law legal
systems. Since Mr. Musisi, learned counsel for the respondent conceded that the proceedings
were irregular and could not have afforded the applicant a fair hearing, I would refrain from
putting my learned brother to any further task and only observe that to the extent that the
procedure denied the appellant a fair trial, it was invalid and no order made following the
procedure should be allowed to see the light of any day. It follows that all orders of the court
made on 15th September 2008 in the said Miscellaneous Application are invalid and ought to
be set aside, including the order of injunction made by the learned trial judge, to the extent that
it applies to the appellant in this appeal.
 The causelist tells the parties the particular judicial officer, time and day on which he
will hear the case. The practice in the High court and superior courts is that a list of
causes to be heard on a particular day are listed and the judge named.
 The issue that normally arises is whether an uncauselisted matter can nevertheless be
heard and if so how does court proceed.
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In Dick Kabali V Rebecca Mawanda and Anor (unreported), Kibuuka Musoke J held that a
matter that is not cause listed cannot be heard and if it is heard, this should expressly be noted
on the record of proceedings by the presiding officer.
Scheduling conference, scheduling memorandum and framing of issues
 The scheduling conference is provided for in O.12 of the Rules and signifies the
procedure where parties agree to a particular facts, stating in brief their respective
cases, set out issue for determination by the court and the mode of trial that they intend
to adopt. Must be held within 28 days after filing pleadings or such other period as
court may provide.
 The purpose of scheduling conference is therefore to iron out the matters in
controversy so that the issue the court is invited to determine are clear to all the parties
Abdu Katuntu v AG and ors; Where the Applicant’s Counsel was requesting the Court
torephrase an issue yet he had fully participated in the Scheduling Conference where both
parties ascertained the points of agreement and the issues for determination by the Court.
Held;
It is common knowledge that the rationale for scheduling is to agree and narrow down the
issues for resolution by the Court. This is provided for under the Rule 53 of the Court’s Rules
(EACJ). For that reason, and in fact in the absence of good cause, the Applicant cannot be
heard to say that during the Scheduling Conference, the issue thus framed did not arise from
his pleadings.
 For all civil suits unless settled by consent, it is a mandatory requirement to hold a
scheduling conference before the hearing of the suit.
Tororo cement Co ltd v Frokina international
J Tsekoko on the rationale on scheduling conference.
“During the hearing of this appeal, we were informed from the bar by counsel, that
prior to the hearing of the case, no scheduling conference took place in the High
Court. Under the new Order XB of the CP Rules, the holding of a scheduling
conference in civil cases is mandatory. See Rule 1(1) thereof.
The principal 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 be disposed of before the suit is fixed for hearing.
In that way the progress of the suit is managed systematically. In this case, it is my
view that the point raised by the present proceedings should have been properly raised
and dealt with during a scheduling conference or soon thereafter. One hopes that the
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holding of scheduling conference will be a regular feature in the trial of civil cases by
all trial courts.”
 The scheduling conference is however unnecessary where the parties enter into a
consent or where a preliminary point of law is raised and is capable of disposing of the
entire suit;
Peter Mulira v Mitchel Cotts Ltd (CIVIL APPEAL NO. 15 OF 2002)
There was no scheduling conference
The judge held; While he appreciated that no scheduling conference was held 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 discussed by
the parties
 The essence of a scheduling conference is to limit the dispute within appropriate

confines and set out agreed and disputed documents some of which are tendered or
exhibited at that stage.
Stanbic Bank Uganda Ltd v Uganda Crocs Limited (Civil Appeal No.4 of 2004 )
Per Tsekooko; The scheduling conference was introduced by the new Order XB of the Civil
Procedure Rules. Because of Rule 1 (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, I expected that at a scheduling conference stage, parties in this case
should have produced properly audited accounts of the respondents as part of 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.
Administrator General v Bwanika and ors
Counsel contended that Documents merely agreed upon during the scheduling conference of a
trial are not themselves admissions within the meaning of section 57 of the Evidence Act.
They are documents, which the parties have agreed to rely on during the trial. It is still left to
the parties to adduce evidence on such documents because they have not been admitted in
evidence as exhibits
Held; that documents which are admitted in a scheduling conference will thereafter become
part of the record and it is only their content that can be challenged.
Per Tsekooko; The purpose of a scheduling conference is to enable parties to agree on non-
contentious evidence such as facts and documents. The agreed facts and documents thereafter
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become part of the evidence on record so that they are evaluated along with 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 the fact of admission.
In Kakooza John Baptist v Electoral Commission; the trial court and the court of appeal had
held that the photocopies of the DR Forms produced by the appellant had no evidential value.
These copies had been admitted at the scheduling conference in the High Court by consent of
both parties.
On appeal; Supreme Court held; that the courts below misdirected themselves in law and fact
in holding that the photocopies of the DR Forms produced by the appellant had no evidential
value. That the most appropriate time for the court to require a party to prove an admitted fact
otherwise than by such admission, would be at the pre-hearing scheduling conference, though
the court may exercise the discretion later in the proceedings. Obviously, however, the
requirement must be communicated in order to give opportunity to the affected party to
provide proof other than the admission. There is no indication anywhere in the record of
proceedings that the trial court communicated such requirement to the petitioner/appellant.
That the fact that the respondents through their counsel at the pre-hearing scheduling
conference admitted the photocopies, the absence of a formal notice to produce the original
forms was not sufficient ground for disregarding their photocopies.
Framing of issues.
Court can’t raise its own matters for litigation and adjudicate then. It is for the parties to raise
the matters for trial with the guidance of court. The questions for trial are to be raised by the
parties with assistance of court.
O. 15 r1 provides for framing of issues.
Framing of issues.
(1) Issues arise when a material proposition of law or fact is affirmed by the one party
and denied by the other.
(2) 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
defence.
(3) Each material proposition affirmed by one party and denied by the other shall form
the subject of a distinct issue.
(4) Issues are of two kinds: issues of law and issues of fact.
(5) At the hearing of the suit the 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 propositions of law or fact the parties are at variance, and
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shall thereupon proceed to frame and record the issues on which the right decision of
the case appears to depend.
Issues of law will be dealt with first.
Darcy v Jones [1959] 1 EA 121

The appellant also argued that the trial magistrate was wrong in framing and subsequently
deciding on issues based on the allegations introduced by the reply. No objection was made at
the trial to the issues framed by the magistrate.
Held –
( ii) that issues framed by the court may go beyond issues raised by the pleadings is apparent
from the provisions of O. 14, r. 1 (5). (now O.15)
(iii) in view of the provisions of O. 14, r. 1 (5) (now O.15) the court not merely has a right but
is under a duty when framing issues so to frame them as to ensure that no party is precluded
from obtaining relief to which he is entitled by reason of some technical error in his pleadings
 Whereas the parties may set out issues for determination by the court, the court is not
bound by such issues and may modify or reframe the issues provided it gives an
opportunity to the parties to address it on the modified issues.
In Oriental Insurance Brokers Ltd V Transocean Ltd CA No. 55/95, it was held that where a
court amends issues which the parties had agreed upon, it is necessary to give the parties the
right to adduce further evidence or address the court on the amended issues. That the trial
judge erred in introducing the second and third issues belatedly while writing his judgment
without consulting the parties or their advocates
In Darlington Sakwa AND Anor. V Electoral Commission & 44 Others Constitutional Petition
No. 08 of 2006 it was held that, where the parties had closed pleadings and submitted on
agreed issues, the court, still, has to consult the parties and give them a hearing, if they so
wish, as held in the case of Oriental Insurance Brokers Ltd vs. Transocean (U) Ltd Civil
Appeal No. 55/95 page 197 – 227 (supra). It is not disputed that the trial proceeds on issues
which are in dispute. The parties must know the issues which require proof so that they
adduce the required evidence.
Kasirye Byaruhanga and Co Advocates v Mugerwa Pius
The issue was that the learned trial judge erred in law and fact, and denied the appellant a fair
trial, when he wrongly omitted the mandatory Mediation and Scheduling Conference, ordered
the filing of documents, “Witness Statements” and “Skeleton Arguments”, and then fixed a
date for delivery of his “Judgment”. Counsel for the respondent conceded that the proceedings
were irregular and could not have afforded the applicant a fair hearing
Held
119
That the procedure denied the appellant a fair trial, it was invalid and no order made
following the procedure should be allowed to see the light of any day. It follows that all orders
of the court made on the 15th September 2008 in the said Miscellaneous Application are
invalid and ought to be set aside.
Per Twinomujuni; It was, to say, the least, an extraordinary court session, the likes of which I
have not come across in the common law legal systems.
 There are two forms of conducting a scheduling conference namely;

a. A scheduling conference conducted in court
b. By filing a joint scheduling memorandum
Note; In the supreme court conferencing is referred to as pre-hearing and it is while in the
commercial division conferencing is pre written in the standard conferencing memorandum
which is a drafted document.
A joint scheduling memorandum is required as a matter of facts to be accompanied by the

respective trial bundles of each of the parties
Note conferencing is not done in suits under O.36 whereas where the application is allowed
and you are allowed to proceed in an ordinary way the mediation and conferencing is done.
Preliminary Objections
See O.6 r 16 & 27,28,29, O.7 r 11,O.13r.2 Article 126 (2)(e),
 As a general rule, when pleadings disclose a case which a court is satisfied will not
succeed, court should strike it out or dismiss it altogether and put a summary end to
unnecessary litigation and to save court’s time and costs involved in the litigation.
 This may be on court’s own initiative or following an application by any party to the
proceedings.
 These applications are commonly referred to as preliminary objections and they may
be formal or informal.
Eng. Yashwant Sidpra V Sam Ngude Odaka
Held; A preliminary objection (some times popularly referred to as a “PO” at the bar) at
common law is in substance an “objection in point of law”.
Time within which to raise a preliminary objection.
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As the word preliminary suggests, such objections should be raised at the commencement of
proceedings as it is proper practice to address court on any irregularity that ought to be cured
before the hearing.
Tororo Cement Co. Ltd V Frokina International Ltd SCCA No.2 of 2001 where Tsekooko
JSC held that after a scheduling conference and if 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 objection raised in this case would have been
properly raised and dealt with during the scheduling conference or soon thereafter.
Preliminary Objection on absence of a cause of action
Tororo Cement Co. Ltd V Frokina International Ltd SCCA No.2 of 2001 where Tsekooko JSC
; That whether a plaint does or does not disclose a cause of action is a matter of law which can
be raised as a preliminary point at the commencement of the hearing of the action even if the
point hadn’t been pleaded in a WSD. That it is however good and proper practice to aver in the
opposite party’s pleadings that the pleadings of the other side are defective and that at the trial,
a preliminary point of objection would be raised. However, failure to do so doesn’t bar a party
from raising the point.
 Whereas it is prudent to raise preliminary objections at the earliest possible opportunity

the case of Makula International V Cardinal Nsubuga suggests that an objection on
points of law will be entertained once brought to court’s attention even in the course of
proceedings.
Ndaula Ronald v. Haji Nadduli Abdul, Election Petition No. 20 of 2006, where the Court of
Appeal held, inter alia, that:
“On points of law, it is settled by the courts that illegality of an issue is a question of
law which can be raised at any time or at any stage of the proceedings, with or
without prior knowledge of the parties.
 It has been said that not all objections constitute preliminary objections that can be
entertained before commencement of the hearing of the suit.
Preliminary objection capable of disposing of the matter; A preliminary objection may be

said to be a point of law or fact capable of disposing of the suit e.g. an objection on ground
that the plaint discloses no cause of action or the suit is time bad.
LAW, J. A. of the East African Court of Appeal observed in Mukisa Biscuit Manufacturing
Co. Ltd. v. West End Distributors Ltd. [1969] E. A. 696 at p. 700:
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“So far as I am aware, preliminary objection consists of a point of law which has been
pleaded, or which arises by clear implication out of pleadings, and which if argued as a
preliminary point may dispose of the suit. Examples are an objection to the jurisdiction
of the court, or a plea of limitation, or a submission that the parties are bound by the
contract giving rise to the suit to refer the dispute to arbitration”
Then at p. 701 SIR CHARLES NEWBOLD, P. added:
A preliminary objection is in the nature of what used to be a demurrer. It

raises a pure point of law which is argued on the assumption that all
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
judicial discretion. (Emphasis is supplied.)
The position in the Mukisa Buiscuits case (supra) on preliminary objections was upheld with
approval 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.
Point of law and fact;
 Generally where the parties raise issues of law and fact in the same suit, and court
deems it fit to dispose of the issue of fact or law only, the court shall try those issues
first and may postpone the other issues for settlement after the issues of fact have been
determined.( O.13 r 2).
 If in the opinion of court, the decision of such a point of law substantially disposes of
the whole suit, or any distinct cause of action or ground of defence, set off, counter
claim or reply therein, court may dismiss the suit. O.6 r.28 See also striking out
pleadings that are frivolous and vexatious under O.6 r.29
Eng. Yashwant Sidpra V Sam Ngude Odaka

Held; 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.
Preliminary objection founded on ground of form.
O. 6r 16 and Article 126 (2)(e) of the constitution disallow technical preliminary objections in
relation to pleadings founded on alleged want of form.
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Preliminary objection only on undisputed facts
Generally, preliminary objections are decided on the basis of pleadings and facts not disputed,
without the necessity of calling witnesses. In Western Steamship Co. Ltd V Ambaral
Sutherland Co. Ltd [1814] 2 K.B 55, it was held that an order for a trial of preliminary point
of law couldn’t be made where there are facts in dispute and if made may be set aside.
In Ismail Serugo V KCC & AG SCCA No.2/98 Oder JSC, 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 issue or the pleadings & not one which will arise if some fact or facts in issue should be
proved.
Pan African Insurance Co. V Ug Airlines Corp & 2 others [1985]HCB 53, Robert V G.W
Kasule & Anor [1987]HCB 62 & N.K Radia V Kalidas & Co. Ltd SCCA No. 10/94, it was
held that where a preliminary objection raises issues which require to be proved by evidence to
enable court to decide the matter, it should be overruled or dismissed and the suit be tried on
the merits. The case was cited with approval in A-G V Major General David Tinyefuza SSCA
No.1/97, Held that where a point of law would be sufficient to dispose of the case one way or
the other, it would be decided by the court first calling evidence. [Mugalula Mukiibi V Collin
Hotel Ltd [1984] HCB 35]
Katabazi and 21 Ors v v AG of Uganda
Held; the matter raised by Mr. Ngalo was not one which could be dealt with as a preliminary
objection because it was not on point of law but one involving facts. Whether or not the 1 st
Respondent had knowledge of what was happening to the complainants in Uganda can never
ever be a point of law but one of fact to be proved by evidence and, therefore, it could not be a
matter for a preliminary objection and hence the dismissal.
Court was of the decided view that grounds of preliminary objection advanced cannot be
disposed off without ascertaining facts. These are not then matters for preliminary objection.
So, they were dismissed.
Allen Nsibirwa V National Water & Sewerage Corp No. 811/92, [1995] KALR 4, Though
limitation wasn’t pleaded by the Defendants in the WSD, the defendant was entitled to raise it
at any stage of the suit since it was a question of law[the other party cant claim that the
defendant].
IGA V Makerere University [1972] EA 65 Mustafa JA observed at a plaint which is barred by

limitation is a plaint barred by law. The limitation Act doesn’t extinguish a suit or action itself
but operates to bar the claim or remedy sought for and when a suit is time barred, the court
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cannot grant a remedy or relief. The plaint should be rejected under O.7 r.11 at any stage of the
suit provided it’s rejected as whole’
ADJOURNMENTS
O.17: r, 1(i): The court in its discretion may, if sufficient cause is shown at any stage to the
suit grant time to the parties or any of them and may from time to time adjourn the hearing of
the suit;
Discretion of Court
Court has discretion but this discretion must be exercised in a judicial and reasonable manner.
Yahaya Kariisa v Attorney General, SCCA No. 7 of 1994 it was held:
“It is in the discretion of a trial court to allow or refuse an application for

adjournment. . Discretion is the faculty of determining in accordance with
the circumstances what seems just, fair, right, equitable and reasonable in
the given set of circumstances. It is settled law that the discretion must be
exercised judiciously. The appellate court would normally not interfere with
the exercise of the discretion unless it has not been exercised judiciously.”
Mbogo v Shah (1968) E.A. 93 at 94. Cited with approval in Obiga Kania v Electoral
Commission;
“A Court of Appeal should not interfere with the exercise of discretion of a judge unless it
is satisfied that the judge in exercising his discretion has misdirected himself in some matter
and as a result has arrived at a wrong decision, or unless it is manifest from the case as a
whole that the judge has been clearly wrong in the exercise of his discretion and that as a
result there has been misjustice
In Mohindra Vs Mohindra; When the suit came up for hearing before the court of 1st instance,
the appellant asked for its adjournment on ground that he wished to engage an advocate. He
intimated that he wished to call no witness other than himself. The trial judge refused the
application without reasons being stated. Held: That only on rarest occasions would the court
of Appeal interfere with the discretion of the trial judge as to the adjournment of a trial. The
Court of Appeal will only interfere where the judge’s decision was such that justice could not
result from the exercise of his discretion and he failed to see that such would be the effect of
his decision.
Birumi Wilson v Akamba

124
Held;The Court of Appeal will interfere with the exercise of discretion of the trial Judge in
refusing an adjournment if the result of his exercise of discretion in refusing the adjournment
will occasion injustice. In the instant case counsel for the plaintiff applied for adjournment
without specifically disclosing the purpose, his application being vague and half-hearted and
the trial Judge was justified in refusing the adjournment. Appeal dismissed with costs.
Rationale:
Justice requires that the parties be afforded an opportunity to get ready if they have genuine
cause as to their unreadiness. The rationale of the rule is that parties should always be afforded
opportunity to present their cases to court. All this is based on the principle of a fair hearing
under Article 28 of the constitution.
In Nuru Kaaya v Crescent Transportation Ltd
The issue was that "The learned trial judge wrongly exercised his discretion when he refused
to grant an adjournment to enable the appellant call its witness and proceeded to immediately
enter judgment for the respondent for UD$ 58,396.
Held; two principles govern 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.
Tsekooko agreed with the following passage Per Twinomujuni;
"It is generally accepted that the essence of a trial is that both parties should be heard
and except where a party is deliberately dragging the proceedings in a trial, such a
party should not be denied opportunity to present its case. In the circumstances of this
case, I am unable to hold that the learned trial judge exercised his discretion
judiciously. The refusal to grant an adjournment to the appellant was totally
unjustified and occasioned a serious miscarriage of justice. This court
therefore, has a duty to interfere with the trial judges exercise of discretion to correct
the injustice".
Existence of a just cause:
Generally adjournments should not be refused unless they are intended to delay or abuse the
process of court and the applicant in the adjournments must at all times disclose the reasons as
to why he seeks an adjournment which must be recorded by court.
New matters arising: [a party may not be ready by reason of having been taken by surprise
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Salongo Vs Nantegolola [1976] HCB 290: Held: That if a new matter arises at the trial which
catches a party unawares, an adjournment if applied for by the party concerned to prepare his
case to meet this new matter is allowable.
Other instances of surprise:
- If served with the pleadings as counsel enters court room an affidavit in reply with new
matters necessitating time to respond.
- When a case is fixed on a short notice with inadequate time to prepare.
- When the witness with no fault with plaintiff or cause does not appear.
- When counsel withdraws in the middle of the proceedings.
Examples of Justified/Sufficient cause:
Illness of the Party:
Dick Vs Piller: On resumption of a part heard case, counsel for the defendant applied for a
further adjournment on ground that the defendant was too ill to attend and that his evidence
was too essential to the determination of the suit and without objection from the plaintiff’s
counsel the judge received a medical certificate to support counsel’s statement and that the
affidavit by the doctor could be obtained that day. The judge rejected the application on
grounds of inaccuracy of the contents of the medical certificate.
Held: That the Judge was not justified in his refusal to act upon the medical certificate and he
exercised his discretion upon wrong principles in refusing to adjourn the further hearing of the
case on such terms as he might have imposed for the plaintiff’s protection. This was an error in
law for which an appeal lay before the Court of Appeal.
NB, Held: An appeal lies only when there is an error of law otherwise whether or not to grant
an adjournment is wholly with discretion of the judge.
Unexplained absence of a witness is no good cause.
Abdalla Habib Vs Hamdan Singh: When the plaintiff’s case came up for hearing, his
advocate applied for an adjournment on ground that his client who lived in Rwanda was for
some unexplained reason absent. The defendant objected that his witness had come at the cost
of 800= from a great distance and because the plaintiff had been dilatory. Held: That no
sufficient cause had been shown for granting an adjournment and accordingly the application
would be dismissed. There was no suggestion that the plaintiff had been taken by surprise or
was unaware of the hearing date thus had not shown zeal in prosecuting his claim.
Adjournment causing delay:
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In exercising its discretion justly, the court will consider the circumstances of the particular
case and inter alia will convince itself on whether the blame is really the defendant’s or if the
blame is the plaintiff’s solicitors and whether the plaintiff has an effective remedy against
them.
Obiga Mario Kania v Electoral Commission, this was an election petition where the
appellant asked for a number of adjournments which were granted several times, although not
always for the length of time requested. However, on 4th June 2011 both the appellant’s
counsel failed to show up for court and the judge dismissed the petition
Held;Court noted that as the record indicates multiple adjournments were granted in this case
at the request of the Appellant. While some reason was always offered by the appellant or his
counsel, the fact remains that adjournment after adjournment was requested on a matter that
was statutorily required to be dealt with as quickly as possible. While it is correct that any
petitioner before court has a right to be heard (Article 28 of the Constitution); that right must
be balanced with free and fair elections. The voters have a right to know, in a reasonable
amount of time, the winner of the election and to have confidence that any dispute will be
resolved quickly so that their elected member may represent them in Parliament. In this case,
the appellant had the opportunity to present his case but, for whatever reasons, chose to
continually ask for more time. The needs of the voters must win out and the grounds of appeal
fail.
Tirwomwe Vs Kanyankole and Others: The Respondents filed a suit against the applicant.
Attempts were made to fix a hearing date but one or the other of the respective counsel
invariably raised an objection to the suggested date. Counsel sent a telegram to the Grade I
Magistrate suggesting a different date and the respondent’s counsel objected on grounds that
he and his client had come from a considerably long distance. Adjournment was refused on
appeal.
Held: That the magistrate had a discretionary power to grant an adjournment but only if
sufficient cause was shown. The mere fact that the advocate would be grateful if an
adjournment was granted could not constitute or be sufficient cause to grant the same. Counsel
had delayed fixing a hearing date for approximately 2 years. The magistrate was fully justified
in refusing an adjournment of what appeared to be a mere whim of counsel for the applicant.
Refusal Amounting to injustice:
Where refusal of an adjournment amounts to a denial of justice, an appellate court will

interfere especially when there are factors relevant to the application.
In Nuru Kaaya v Crescent Transportation Ltd
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The issue was that "The learned trial judge wrongly exercised his discretion when he refused
to grant an adjournment to enable the appellant call its witness and proceeded to immediately
enter judgment for the respondent for UD$ 58,396.
Held; two principles govern 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.
Per Twinomujuni; "It is generally accepted that the essence of a trial is that both parties should
be heard and except where a party is deliberately dragging the proceedings in a trial, such a
party should not be denied opportunity to present its case. In the circumstances of this case, I
am unable to hold that the learned trial judge exercised his discretion judiciously. The refusal
to grant an adjournment to the appellant was totally unjustified and occasioned a
serious miscarriage of justice. This court therefore, has a duty to interfere with the trial
judges exercise of discretion to correct the injustice".
It is not a ground for an adjournment that opposite counsel has agreed.
Kayongo Vs Kampala Municipal Council: That the defence Counsel’s consent is not a
sufficient cause for adjournment to be allowed.
Application to the Registrar: In the absence of the judges, one can apply for adjournment to
the Registrar or where the Chief Magistrate is not present an application may be lodged with
another magistrate G I who may grant the adjournment as a necessity but cannot hear the
merits of the case.
Mode of application:
The application for the adjournment must be made orally at the hearing as early as possible
when the case is called for haring
In Fred Hereri v Attorney General
Held; that seeking adjournment by telephone, letter or a note does not constitute an
appropriate method of applying for an adjournment. An adjournment could not be granted on
the basis of such a note.
DISMISSAL OF SUITS.
Where defendant does not file a defence, the suit heard is exparte
Where defendant files a defence but does not appear, plaintiff applies for hearing ex parte
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Where both defendant and plaintiff do not appear for hearing, dismissal.
O.9 r 22 Where the defendant appears, and the plaintiff does not appear, when the suit is called
on for hearing, the court shall make an order that the suit be dismissed, unless the defendant
admits the claim, or part of it, in which case the court shall pass a decree against the defendant
upon such admission, and, where part only of the claim has been admitted, shall dismiss the
suit so far as it relates to the remainder.
Read cases ……….
Natamba V Musoke 1998 HCB 98 considering O. 15 r 5 where defendant was allowed to

apply to court for dismissal of suit for failure of plaitinf to set down the suit for hearing.
 Upon such dismissal without a hearing, O. 9 r 27 allows the defendant to apply for
setting aside the decree passed against him if he or she satisfies court that summons
were not duly served or that he was prevented by sufficient cause from appearing when
the suit was called for hearing.
National Insurance Corporation v Mugenyi where the court found that the test 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 defence to that case
RE-INSTATEMENT OF SUITS; See O.9 r 22 & 23:
Re-instatement is provided for under O.9 r 23, which is to the effect 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. However the plaintiff is allowed for re-instatement of the suit
upon showing sufficient cause for non-appearance when the suit was called for hearing before
court can order the setting aside of the dismissal and appoint a date for proceeding with the
suit.
Norah Nakirridde Namwandu Vs Hotel International Ltd (1987) HCB 85; This was an
application to re-instate the plaintiff’s application for arrest and detention in civil prison. The
application was dismissed because counsel did not appear in court on the hearing date. In the
present application the applicant sought to set aside the dismissal and re-instate the
application.
Held: that in considering whether there was sufficient cause, why counsel for the applicant did
not appear in court on the date of the application was dismissed, the issue is whether such a
party really intended to attend and did his best to attend. It was important for the litigant to
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show at length from the affidavit that it was clear that counsel was prevented by illness though
he did his best to attend. The son of the applicant did in fact come to court and that showed
diligence on the part of the applicant. Application to re-instate suit allowed.
The test of sufficient cause:
National Insurance Corporation Vs Mugenyi and Co. Advocates: This was an application
challenging the dismissal of an application filed against the respondent which came up for
hearing and was dismissed due to the absence of the applicant’s advocate. An application by
notice of motion to re-instate the suit was dismissed by Akena J on ground that such refusal
did not constitute a miscarriage of justice. The respondent contended that the application was
brought under O.19 r 20 which gave court discretion to be exercised when there was sufficient
cause and where there was a likely miscarriage of justice.
On appeal; Held; That the judge ought to have considered the issue of whether there was
sufficient cause and not only necessarily or only the issue of whether a miscarriage of justice
would be caused which was used on a pre conceived opinion that the suit was res-judicata.
“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 defence to that case.
On the facts, the applicant’s counsel intended to appear before court and prosecute the
application to reinstate the suit.
Other Examples of sufficient cause
Stewards of Gospel Talents Limited V Nelson Onyango & 7 Others
Held; In an application for restoration of a dismissed suit under O.9 r.22, all the applicant
needs to do is to satisfy court that there was sufficient cause for non-appearance, that is, that he
had an honest intention to attend the hearing but failed to do so, and that he was diligent in
applying.
The law does not offer a definition of what amounts to ‘sufficient cause’ but in Shabir Din vs
Ram Parkash Anand (1955) 22 EACA 48, it was held that a mistake by the plaintiff’s counsel
though negligent, may be accepted. In Nakiridde vs Hotel International [1987] HCB 85,
sickness of Counsel was accepted to constitute a just cause.
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Twiga Chemicals v Viola Bamusedde; quoted the case of Nicholas Roussos vs
Gulamhussein Habib Virann &Another (SCCA No.9/93)(unreported) the Supreme court
gave guidance of how the court can exercise its discretion in applications of this nature. It said:
"As for the principles upon which the discretion under r.24 may be exercised, the
courts have attempted to lay down some of the grounds or circumstances which may
amount to sufficient cause. A mistake by an advocate though negligent may be
accepted as a sufficient cause. See Shabin Din V Ram Parkash Anand (1955) EACA
48. Ignorance of procedure by an unrepresented defendant may amount to sufficient
cause Zirabamuzale v Correct [1962] EA 694. Illness by a party may also constitute
sufficient cause: P.B.Patel v The Star Mineral Water and Ice Factory [1961] EA
454. But failure to instruct an advocate is not sufficient cause. See Mitha v Ladak
[1960] EA 1054. It was also held in this case that it is not open for the court to
consider the merits of the case when considering an application to set aside an ex
parte judgment under this rule".
Negligence of Counsel:
M/s United Office Equipment and Stationery Supply E.A Vs Uganda Bookshop Ltd: This
was an application under O.9 r 18 and O.52 r 1CPR for setting aside an order dismissing the
suit and re-instating it. In the original suit neither counsel for the plaintiff nor the plaintiff
appeared on the date of hearing. Counsel for the defendant appeared and the suit was
dismissed under O.9 r 22 CPR. Counsel said he had gone to Fort Portal and was unable to
return due to political instability. It was contended that the affidavit did not disclose reasons
for counsel’s non appearance and this was due to counsel’s negligence and not political
instability.
Held; The failure by counsel for the plaintiff to appear was due to the negligence of counsel,
although sufficient cause may be as absurd as when counsel is negligent. In the present case
counsel was not diligent and did not make the application for re-instatement until after a year.
Although some payment to the tune of 113,100= was made in the circumstances, the
provisions of O.9 r 18(i) which requires the applicant to satisfy court that there was sufficient
cause for non-appearance was never satisfied.
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In Arthur Busingye v Gianluigi Grassi; 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.
Held;
The Supreme Court of Uganda in Nicholas Roussos vs Gulamhussein Habib Virani &
Another, Civil Appeal No.9 of 1993 (unreported), held that some of the grounds or
circumstances which may amount to sufficient cause include mistake b y an advocate though
negligent, ignorance of procedure by an unrepresented defendant and illness by a party.
Similarly in the case of Ms United Office Equipment & Stationary Supply EA 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 as absurd as counsel’s
negligence.
It is now a settled principle that mistake of counsel however reckless or negligent cannot be
visited on the litigant. The applicants who had instructed lawyers to pursue their application
cannot be condemned for not being vigilant in prosecuting their matters. Once a party
instructs counsel , he assumes control over the case to conduct it throughout, the party
cannot share the conduct of the case with his counsel. As such the applicants could not have
been expected to follow up their case in court when they had instructed counsel to prosecute
their application. The applicants have shown sufficient cause why they and their lawyers
failed to appear in court on the day their application was dismissed. Dismissal set aside
In Ggolooba Godfrey V Harriet Kizito the Supreme Court held that the Court of Appeal
came to the correct conclusion that the High Court erred in dismissing the application for
reinstatement of the suit when the respondent’s advocate had shown sufficient cause for not
appearing because he was under the impression that the parties were still negotiating a
settlement.
Inherent Jurisdiction of Court Under S.98 CPA
G.M. Mulindwa Vs J.J. Kisubika: Counsel for the applicant in the main suit deponed that
when the suit was dismissed for non-appearance, he was attending the Supreme Court in
another case. The applicant himself deponed that he attended court and found that the suit had
just been dismissed. The court found as a fact that it was negligence of Counsel that led to the
dismissal of the plaintiff’s suit.
Held: that the professional negligence of counsel leading to the suit being dismissed under O.9
r 22, CPR where the applicant has engaged another counsel should not act as bar to justice. For
purposes of justice, court was empowered under S. 98 CPA to set aside the dismissal.
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NB: In some instances, judges on taking the view that if counsel is negligent, then the client
should sue counsel to recover what he was seeking in the suit.
NB: The provision of S. 98, CPA having a wide application than O.9, r 23 CPR which merely
refers to sufficient cause. However that section is only referred to where no remedy is
available under the rules.
Application to be supported by a valid affidavit
Namazzi Vs Sibo[1986] HCB 58: Held: That O.9 r 23 of CPR makes it mandatory or
sufficient cause for absence to be shown and since the application had no valid supporting
affidavit. It could not be entertained.
In Road Master Cycles (U)Ltd V Tarlock Singh Sagh
held as the applicant filed a defective affidavit defective application ought to be dismissed on
the authority of Teddy Namazzi v Anne Sibo [1986] HCB 58 where the affidavit like in this
case was fatally defective for failing to indicate or bear the date on which the oath was taken
contrary to the provisions of Section 8 of the Oaths Act
Procedure of application:
Applications are by notice of motion and this is provided for under O.52 r 1 CPR. Namazzi Vs
Sibo: That an application for reinstatement must state the provisions under which it was made.
In this case the application was brought by notice motion but did not state the legal provisions
under which it was made.
Time within which to apply for re-instatement
Girado Vs Alam & sons (U) Ltd: The suit was dismissed but the application was brought after
9 months.
Held: That though no sufficient cause was shown, the court had inherent jurisdiction to restore
a suit dismissed for default. With respect to delay, the judge noted that there should be a
limitation period to apply for a re-instatement and recommended a period of 30 days. see M/s
United Office Equipment and Stationery Supply E.A Vs Uganda Bookshop Ltd: The
application brought after 1 year was rejected.
Dismissal must be for non appearance; Meray Vs Ghundhi & Co. The applicant landlord
filed two suits against his 8 tenants claiming possession and for other reliefs for both cases, he
retained the same advocate. When the cases were set down for hearing, the applicant’ advocate
realized that it will clash with the criminal case he was engaged in at the Supreme Court. The
Applicant’s advocate applied for adjournment which was rejected. The applicant’s advocate
decided not to appear and the suit was dismissed for non appearance.
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Held: That the applicant had both in fact and law entered ‘appearance’ and therefore no order
could be made under O.9 r.22. The dismissal of the suit though in itself regular need not have
been effected under the terms of O.9 r 22 since the condition precedent namely non
appearance of the plaintiff was not satisfactory. That mere presence of a party in court at the
hearing is sufficient to constitute appearance since it does not matter for what action he take
on the appearance. A plaintiff appearing and applying for an adjournment on the ground that
his witnesses are not present will be deemed to have appeared.
F. Sekyana Sebugulu Vs D. Katunda;
Khan J. An order of dismissal could be treated under O.9 r 22 only if the plaintiff was not
represented on the hearing date. In as much as plaintiff’s counsel was present and appeared on
the plaintiff’s behalf when the suit was dismissed, the plaintiff was then pursuant to order 3 r 1
legally present before court on that date. Accordingly the order of dismissal could not be made
under O.9 r 22. Accordingly, the learned Judge’s order setting aside under O.9 r 23 was passed
without authority.
Notice of application must be served;
Sherali Banal Jaffer Vs Seggani and Another; Oteng J. That before a suit can be dismissed
under O.9r 22 CPR; the defendant had to prove that the hearing notice had been properly
served.
Other instances of Re-instatement: O.9 r 18 covers some limited circumstances of a

reinstatement. The case must have been dismissed under rule 16 (failure to pay court fees) and
r 17 (non appearance of both parties) i.e. plaintiff may either bring a fresh suit or apply for
reinstatement of the suit. See Distinction between O.9 r.18 and O.9 r 23 is that a fresh suit may
be commenced under r.18 but not under r.23. See wording of the rule
Kibugumu Patrick v Aisha Mulungi court interpreted rules 17 and 18; in this case the
applicant applied for reinstatement of a suit which was dismissed under Order 17 rule 6(1)
which under sub rule 2 allows the plaintiff to bring a fresh suit subject the law of limitation.
Held;
The wording of Order 17 r.6 (2) (supra) is permissive in nature in that the plaintiff “may”,
subject to the law of limitation, file a fresh suit. A plaintiff has a choice either to file a fresh
suit, if his or her action is still within the time limited by law, or to pursue other non judicial
lawful means to enforce his or her rights where the suit is caught up by the law of limitation..
The above situation is distinguishable from one under Order 9 r.17 CPR where a suit is
dismissed for non appearance of the parties when the suit is called for hearing. It provides as
follows;
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“Where neither party appears when the suit is called on for hearing, the court may
make an order that the suit be dismissed.”
In the above latter scenario, the remedy for the affected plaintiff lies under Order 9 r.18
(supra) which permits the plaintiff, subject to the law of limitation, either to bring a fresh suit
or to apply to court to set aside the dismissal and restore the suit after demonstrating sufficient
cause for the non-appearance to the satisfaction of the court. In either of the options, however,
it is clear that strictly observing the law of limitation still applies with equal force. In the event
that the filing of a fresh suit or reinstating the suit is caught up by the law of limitation, the
court would not grant any remedy because its hands are tied. There is no provision for
reinstatement of a suit dismissed under Order 17 Rule 4. In the instant case, the application
was found incompetent and dismissed.
WITHDRAWAL AND ADJUSTMENT OF SUITS.

O.25 r1. Withdrawal of suit by plaintiff or defendant.
(1) The plaintiff may at any time before the delivery of the defendant’s defence, or after the
receipt of that defence before taking any other proceeding in the suit (except any application in
chambers) by notice in writing wholly discontinue his or her suit against all or any of the
defendants or withdraw any part or parts of his or her alleged cause of complaint, and
thereupon he or she shall pay the defendant’s costs of the suit, or if the suit is not wholly
discontinued the costs occasioned by the matter so withdrawn. Upon the filing of the notice of
discontinuance the costs shall be taxed, but the discontinuance or withdrawal, as the case may
be, shall not be a defence to any subsequent action.
At this stage the right to withdraw is absolute. He doesn’t have to consult the defendant. All he
has to do is to notify the registrar. The proceedings will be terminated at this stage.
Rules 1 (2) and (3) provide for the qualified right of withdrawal which can only happen with
permission of court.
(2) Except as in this rule otherwise provided, it shall not be competent for the plaintiff to
withdraw or discontinue a suit without leave of the court, but the court may, before or at, or
after hearing upon such terms as to costs, and as to any other suit, and otherwise as may be
just, order the action to be discontinued or any part of the alleged cause of complaint to be
struck out.
(3) The court may, in like manner, and with the like discretion as to terms, upon the
application of a defendant order the whole or any part of his or her alleged grounds of defence
or counterclaim to be withdrawn or struck out, but it shall not be competent for a defendant to
withdraw his or her defence or any part of it without such leave
Rule 2 –withdrawal with consent,
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When a suit has been set down for hearing it may be withdrawn prior to the hearing by either
the plaintiff or the defendant upon filing a consent signed by all the parties.
Ezekiel Mulondo v Semakula

The plaintiff filed a suit against the defendant but before the defendant put in his defence, the
plaintiff decided to withdraw the suit paying the defendant costs up to this stage. The
defendant rejected the notice of withdrawal in absence of leave of court.’
Held; the plaintiff may withdraw his suit but before the defence is filed. Even after the defence
has been filed, the plaintiff may still withdraw the suit. Court observed that the plaintiff may
have various reasons such as lack of evidence or for some other good reason to unilaterally
abandon the suit for the time being or for good.
r. 6. Compromise of a suit.
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.
r.7 Procedure under this Order.

Applications under rule 1 of this Order shall be by summons in chambers.
PAYMENT INTO COURT AND TENDER

The rules of procedure allow the defendant who wishes to settle a claim to pay money in court.
This can be done through 3 ways.
a. Pressure the plaintiff to accept the money
b. Protect the defendant from the issue of costs
c. Protect the defendant against any interest that may be awarded eventually.
Payment of money in court by the defendant comes when there is a prospect of court ruling in
favour of the plaintiff at trial. When the defendant pays mney int court, it means there is no
need for further litigation.
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O.27 r.1; Defendant may pay money into court in satisfaction or denying liability.
Where any suit is brought to recover a debt or damages, any defendant may before or at
the time of filing his or her defence, 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
defence 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.
PRE-TRIAL AND JUDGMENT REMEDIES
INTERLOCUTORY REMEDIES:
Temporary Injunction:
An injunction is an order of court directed to a party to a suit restraining that party from doing
a particular act until the final determination of the matter in controversy.
Courts of judicature generally have powers to grant temporary injunctions during the pendency
of civil proceeding in all cases in which a court finds it just and reasonable and these are meant
to last a duration of the hearing until final determination of the suit. These powers are available
to a court exercising original jurisdiction.
Jurisdiction:
The jurisdiction for granting an injunction derives from section 38 of the Judicature Act
Cap13.
Section 38(1): High Court is empowered to grant an injunction restraining any person from
doing any act as may be specified by the court. See S. 207(5) MCA for jurisdiction of
Magistrate’s courts to grant any relief which they have powers to grant under the Act or any
other written law.
Applicability of Civil Procedure Rules:
These rules are applicable to the High court and the Magistrate’s courts as well as Grade I
Magistrates.
Nakabago Vs Kyonga [1981] HCB
Held: That the civil procedure Rules are not applicable to magistrates’ court presided over by
Magistrates Grade II and Grade III. That the applicable rules are those set out in the 3rd
schedule to the MCA.
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Exercise of Court’s Powers: 0.41
The application for the remedy for a temporary injunction is provided for under O.41 of the
CPR “where in any suit it is proved by affidavit or otherwise
O.41(1) (a): That any property in dispute is in danger of being wasted, damaged or alienated
by any party to the suit, wrongfully sold in execution of a decree.
(b) That the change threaten or intends to remove or dispose of his property with the view to
defraud his creditors, the court may grant a temporary injunction to restrain such alteration or
such other order for the purpose 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.
In Re Kikoma Saw Millers Ltd: Held: That where property is in danger of being wasted, an
injunction can issue.
Continuous breaches:
O.41 r 2 (1) deals with injunctions that is intended to restrain the repetition or continuance of
breaches of contract.
Conditions for application:
For a party to apply for a temporary injunction there must be a main suit which must be proved
by affidavit or otherwise.
Definition of a Suit:
Muwaira Nakana v Departed Asian Custodian Board. In which case court observed that
the right to obtain an interlocutory injunction is not a cause of action, it is dependent upon
there being a pre existing cause against the defendant, arising out of the invasion, actual
threatened by him of legal or equitable right of the plaintiff for the enforcement of which the
defendant is amendable to the jurisdiction of the court.
The right to obtain a temporary injunction is merely ancillary and incidental to the existing
cause of action. The right to a temporary injunction order cannot exist in isolation but it is
always incidental and dependent on the enforcement of the substantive right
A temporary injunction is a shield not a sword. It is an order given to restrain not to attack
Samuel Mayanja v URA.
In this case, there was a suit pending before a tribunal.
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Held; The provisions of Order 41 Rules 1 and 2 of the Civil Procedure Rules deal with
applications for temporary injunction as an interlocutory matter in a pending proceeding
before the court. Clearly here there is no pending proceeding before this court. TAT No.22 of
2006 is pending before another tribunal of first instance in matters related to resolution of tax
disputes. A suit pending before another court is not sufficient to trigger into play an order for a
temporary injunction. Application dismissed.
Discretion of court
The relief of injuction is discretionally;
In Alley Route Ltd v Uganda Development Bank,
Held; the law relating to grant of a temporary injunction is that the granting of an interim
injunction is exercise of judicial discretion. Court must exercise that discretion judicially.
Francis Kayanja v DTB U LTD
Held
The law is that the granting of a temporary injunction is a judicial discretion which court
exercises judiciously upon considering the conditions below. First whether the applicant has
shown a prima facie case with a probability of success. Secondly that the Applicant would
suffer irreparable injury which would not adequately be compensated by an award of damages.
Thirdly, if court is in doubt on any of the above two, it will decide the application on the
balance of convenience
Purpose of Temporary Injunction:/Maintenance of status quo
It is to keep or maintain the status quo till the final determination of the issues in controversy.
Francis Kayanja v DTB U LTD, held; The prima purpose of a temporary injunction is to
preserve the status quo pending the disposal of the main suit
Peace Isingoma v MGS international u ltd
Held; The prime purpose of a temporary injunction is to preserve the status quo until the
questions to be investigated in the main suit are finally disposed of
In P.K Sengendo v James Ndaula;
Held; The main purpose of granting of a temporary injunction is to preserve the status quo
pending the determination of the head suit. “Status quo” simply denotes the existing state of
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things existing before the particular point in time; and in determining whether or not to
maintain the status quo other surrounding circumstances have to be taken into account
Per Justice Bashaija; The question thus becomes; what status quo ought to be maintained?
In my view, status quo being the existing state of things existing before a particular
point in time, the point in time that ought to be taken into account in the instant matter
should be as at the time of filing the application. It is presumed that it is when the acts
complained of by the Applicant either occurred or he became aware of them. Short of
that he would be guilty of laches.
If that be the case that the status quo is as at filing of this application, it would mean
that an application seeking orders restraining the Respondents from claiming title in the
suit land would be unobtainable. This is because the Respondents obtained title to the
respective pieces of land to which they lay their respective legal proprietary claims way
back in 2010. Even for those titles which the Applicant alleges are still owned by the
1st Respondent for which he seeks the orders in this application, they predate the filing
of this application. The issue whether the titles were obtained fraudulently and/or
illegally cannot be determined in an application for temporary injunction but the main
suit. I find that it would not be legally and or practically feasible to restrain the
Respondents from claiming titles to the suit land - which titles they already have.
The Court of Appeal in Godfrey Sekitoleko & Ors V Seezi Mutabaazi & Ors [2001 – 2005]
HCB made the position clear by stating as follows;-
“The court has a duty to protect the interests of parties pending the disposal of the
substantive suit. The subject matter of a temporary injunction is the protection of legal
rights pending litigation. In exercising its jurisdiction to protect legal rights to the
property from irreparable or serious damage pending the trial, the court does not
determine the legal rights to property but merely preserves it in its actual condition until
legal title or ownership can be established or declared.”
Florah Rwamarungu v DFCU Leasing Co Ltd
The purpose of a temporary injunction is to maintain the status quo and not to alter it. As the
sale has occurred already, even though its legality may be disputed, this application is coming
too late. It cannot succeed in the circumstances
Nakawooya v Segawa
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Held; There is a wealth of authorities to the effect that a temporary injunction is not available
to the Applicant where the status quo has already been disturbed. In Mugenyi V Wandera
[1987] HCB 78 it was held that the purpose of an injunction is to preserve the status quo until
the dispute is resolved, and it would not help in the said case where barricades had already
been fixed. Similarly, in Wasswa V Kakooza, supra, a temporary injunction was not
available to the Applicant where the status quo had already been disturbed through the
Applicant being forced out of the suit premises.
In the premises, and on the basis of the foregoing authorities, the status quo the Applicant
seeks to protect through grant of a temporary injunction has already been disturbed as the suit
property she seeks to prevent from sale or alienation has already been sold off to a third party.
An order of temporary injunction in the circumstances would be in vain. On that ground alone,
this application would fail as there is no status quo to preserve.
Injunction to Preserve Property – O.41 (7):
Court has powers to order impounding and preservation of suit property.
Bob Kanyabutala Vs Ahmed Kakoza: This was an application under O.41 r 7, CPR for an
interlocutory injunction/order for the suit vehicle to be impounded and detained at Kampala
for preservation pending the determination of the suit.
Held: O.41 r 7(1) gave court wide powers to preserve the suit properties. If the plaintiff
succeeds in the suit, there might be barren results and it is the duty of court to try and avoid
this cooking at the fact of this case and conduct of the respondent, if the court denied the
applicant the relief he is asking for; the respondent might dispose of the suit property and that
would render the applicant’s suit nugatory
Pre-conditions/Considerations for grant of a temporary injunction
Kiyimba Kagwa Vs Katende: The applicant was the registered owner of the suit land which
was disputed between himself and the Defendant had brought a tractor and begun cultivating
the land. The Plaintiff applied for the temporary injunction.
Held: That the conditions for the grant of an interlocutory injunction include;
1) The applicant must show a prima facie case with a probability of success
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2) Such injunction is only granted where the applicant might otherwise suffer irreparable
injury which will not be adequately compensated by the award of damages.
3) If the court is in doubt, it will decide the application on a balance of probability.
In Alley Route v Uganda Development Bank
Held; 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 prima 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 adequately be compensated by an award of
damages. Thirdly if the Court is in doubt, it will decide an application on the balance of
convenience.
Imelda G. Basudde nalongo v Tereza Mwewulizi and Anor
Held; The judicial analysis to be carried out by the court when considering whether or not a
temporary injunction should issue in any given case must cover the following three important
conditions or elements. That is to say, that the court must consider:
a) Whether the applicant has a prima facie case with a probability of success.
b) Whether, if the injunction is not granted, the applicant is likely to suffer,

irreparable injury which the award of damages may not be adequate to atone;
and
c) If, the court is remains in doubt, after analysing the above two conditions, it will
consider the question, in whose favour, of the two parties to the head suit, the balance
of convenience tilts. In other words, which of the two parties is more likely to be
placed at mere disadvantage or inconvenience if the injunction is denied by the court.
Existence of a prima facie case

Meaning;
Imelda G. Basudde nalongo v Tereza Mwewulizi and Anor
Held
What is normally meant by a prima facie case is that the evidence placed before the court, by
way of affidavit or otherwise, in the application for the injunction must show that there exists a
142
genuine triable issue, in the main suit pending between the parties. The court must be satisfied
that the dispute presented in the main or head suit is not a sham but a genuine dispute and that
the applicant has probabilities of succeeding in the main suit.
Agnes Bainomugisha v DFCU Ltd
Held; In order to succeed on this application the applicant must demonstrate that she has a
prima facie case, or at least an arguable one. At this stage, as no trial has taken place the court
is not required to evaluate the case in detail or assess at great length the probability of success
of the same. However, the court must be able to be satisfied that there is some serious question
to be investigated.
Francis Kayanja v Diamond Trust Bank of Uganda.
Held; Regarding the first test, whether the Applicant has a prima facie case with a probability
of success, the trend in Uganda is to consider only whether there are serious questions to be
tried.
Nabitindo v Umar Nassolo; held; As to whether the suit establishes a prima facie case with
probability of success, case law is to the effect that though the applicant has to satisfy court
that there is merit in the case, it does not mean that one should succeed. It means there should
be a triable issue, that is, an issue which raises a prima facie case for adjudication.
Irreparable injury/ Damage:
Held: That irreparable damage/injury means that there must be no physical possibility of
repairing of the injury but means that the injury must be substantial or the material one i.e. one
that cannot be adequately compensated for by damages.
Irreparable injury:
As to the existence of irreparable injury or not is a question of fact.
In Kiyimba Kagwa Vs Haji Nassar Katende (1988) HCB 43 Odoki J (as he then was) held
that irreparable injury means that the injury must be substantial or immaterial one, that is, one
that cannot be adequately compensated for in damages.
Alley Route v Uganda Development Bank
Held; On the issue of irreparable damage the catch word is "adequately atoned". Injury which
an award of damages can not adequately atone. In Tonny Wasswa vs. Joseph Kakoza [1987]
143
HCB 85 irreparable injury has been held to be injury which is substantial and can not be
adequately remedied or atoned by damages
Francis Babumba Vs Bunje: Held: That in view of the scarcity of accommodation, in

Kampala, if the applicants were evicted, they would suffer irreparable damage (injury) since
alternative accommodation will not be easy to get.
Held
That irreparable injury means that the injury must be substantial or immaterial one, that is, one
that cannot be adequately compensated for in damages.
In the instant case, The Applicant does not in his affidavit show the nature of loss he would
suffer. Other than stating that the land comprises of a school called Kireka Parents School, the
Applicant does not show what injury that would result to him and which cannot be
compensated by an award of damages. In his submission the Applicant’s counsel stated that
the school was the Applicant’s only source of income and that the Respondent had granted the
loan to the Applicant while aware of this fact. Counsel’s submission in his regard was not
supported by any evidence on record. Court should not be expected to speculate
Florah Rwamarungu v DFCU Leasing Co Ltd
The application for temporary injunction was rejected apparently because the court was
satisfied that there was no evidence of irreparable loss and that there was no status quo to
maintain since the suit land had been sold and transferred some seven months earlier to a third
party who was not a party to the suit. An appeal against that particular ruling to the Court of
Appeal was also rejected and that Court upheld the reasoning of the hence an appeal to the
supreme court
Held; Loss of a source income does not in itself constitute irreparable loss. By the nature of an
income source, the stream of income following from that source is quantifiable in monetary
terms, and cannot be ‘irreparable’ in the sense that it cannot be atoned for by damages, since it
is capable of quantification, without more. That this application has no merit for failure to
prove irreparable loss.
Doreen Kalema Vs NHCC:
Held: That a temporary injunction could only be granted to an applicant who was likely to
suffer substantial and irreparable damage/injury which could not be adequately remedied.
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Housing was acute in Kampala; the applicant was likely to suffer irreparable damage if the
intended execution was carried through.
Nitco Ltd Vs Hope Nyakairu: Held: That on the facts of the case the applicant had not shown
that he would suffer irreparable injury which could not-be adequately compensated by an
award of damages if a temporary injunction was not granted. That the grant of a temporary
injunction would instead inflict irreparable injury on the defendant as the plot of the land could
be removed from her if she did not develop it within five years. If however, the defendant
proceeded with the building and eventually at the end of the trial, the plot turns out to be the
plaintiff’s the defendant would be ordered to demolish the building, remove the debris and
compensate the plaintiff for any damages to the plot. If on the other hand the plot was declared
the defendant’s, at the end of the trial of the main suit the plaintiff would suffer nothing except
may be by way of costs.
Balance of Convenience:
The court is requested to weigh the convenience of complying with the injunction on the part
of the respondent against the damage that the applicant would suffer if the injunction is not
granted. If the damage outweigh the convenience, then the applicant would be granted the
injunction.
UCB Vs General Parts (U) Limited:
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.
Held; The last test is that in case of doubt court should decide whether or not to grant a
temporary injunction on the balance of convenience. This test is resorted to when Court is in
doubt on any of the first two issues. Without any doubt my finds on the first two issues have
been in the negative. I therefore find no need to consider the issue of convenience.
American Cynanid Vs Ethicon Ltd
Per Diplock; ; It is where there is a doubt as to the adequacy of the respective remedies in
damages available to either party or both, that the question of balance of convenience arises. It
would be unwise to attempt even to list all the various matters which may need to be taken into
145
consideration in deciding where the balance lies, let alone to suggest the relative weight to be
attached to them.
Injunctions against Government:
S.14, CPA empowers court to grant all such remedies against the government as may be
granted against private individuals in proceedings except remedies whose effect is to grant an
injunction or order specific performance, S.14(2). The foregoing cannot be granted against a
government official if the effect is that relief is granted against the government.
A-G Vs Silver Springs Hotel:
The M.O.F cancelled repossession certificates issued under the change ACPB. The respondent
appealed to the high court and obtained an injunction against the government and its agents
from dealing with the suit premises. On application, the issue was whether court can issue an
injunction against the government or its officials.
Held: That an injunction (temporary or permanent) cannot lie against government under the
laws of Uganda. That the rationale is that which government machinery should not be brought
to a halt and it should not be subjected to embarrassment, that it would be against public
policy if government business was brought to a halt. That subsequent legislation does not
repeal earlier legislation without explicitly stating so, and where no necessary implication can
be drawn hence S.36, Judicature Act 1967 did not repeal S.15 of the CPA. See S.7, Local
government Act as amended.
Christopher Sebuliba Vs A-G:
The plaintiff sued government to recover land and for an eviction order which was deemed in
the T.C as inconsistent with S.15, CPA.
On appeal, Platt held: That where as government is entitled to protection such protection
should be scrutinized carefully where it is unconscionable. That there are situations where the
government may insist on such protection or may by implication wave its immunity but in this
case the government’s conduct was such as it had waived its immunity. The government had
indicated to the plaintiff that it would not vacate the premises without a court order hence it
would be unfair to the plaintiff if the same government claimed immunity where faced with
the court order.
However, the courts shifted position in the aftermath of enactment of the 1995 Constitution.
Hence in the case of Osotraco [U] Limited v. Attorney General, where Ministry of
Information employees had occupied and refused to vacate the plaintiff company’s property at
Mbuya Hill, orders were sought for the eviction from the property and a permanent injunction
from occupation against the defendants from the suit premises. The court found that the
146
plaintiff company was the registered proprietor of the property. On the issue of whether court
could make an order of vacant possession against the government, Court stated that Section 15
of the Government Proceedings Act prohibited court from making any order for the recovery
of land or property, and instead enjoined it to make a declaratory order that the complainant
was entitled to such property. The Court found that this provision ran counter to the spirit of
the 1995 Constitution, because such a ruling would have deprived the successful party of the
most appropriate remedy namely, recovery of his or her land. Court noted that since Section15
of the Government Proceedings Act had been rooted in the non-immutability of state powers
and immunities, Article 126 of the 1995 Constitution enjoined the courts to administer justice
in the name of the people. Egonda-Ntende. J., pointed out that,
If government is in wrongful occupation of property, substantive justice demands that
it be ordered to vacate. A declaratory order leaves a successful party at the mercy of
government functionaries as to when he is to enjoy the fruits of successful action
against government, for the declaratory order cannot be enforced.
On appeal, the state’s contention was that the learned judge erred in interpreting the
constitution, a duty that was reserved for the Constitutional Court only under Article 137. In
the lead judgment of the court, Justice Mpagi Bahigeine upheld the lower court’s decision,
stating that the learned judge had not interpreted the constitution but was merely bringing the
Government Proceedings Act into conformity with the 1995 Constitution under Article 273.
The decision in Silver Springs was thus overruled, with court stating that the Silver Springs
case predates the 1995 Constitution by about six years. Times have changed. The decision
cannot therefore be said to be in line with the spirit of the new Constitution especially article
126 (1)
Service or Notice of Application:
O.41 r3: this requires service of the application on the adversary party otherwise court will be
reluctant to make an ex-parte order.
Jonny Wasswa Vs Kakooza: It was held that an injunction was to be set aside for lack of
service on the opposite party and service was not to be dispensed with unless the applicant
shows good cause. See also r.4.
Notice may be dispensed with
Busulwa Vs Nakanwagi: Held: Notice shall be dispensed with and a temporary injunction
granted because the building (subject matter of the suit) was in immediate danger.
Doreen Kalema Vs NHCC: This was an application for a temporary injunction restraining the
defendant from evicting the plaintiff as this constituted disturbance of the plaintiff’s quiet and
peaceful enjoyment of residential premises owned by the defendant. The application was
brought under O.41 r 1, 2, 3 and 9.
147
Held; That though O.41 r3, CPR requires notice of an application under r 1 and 3 of the order
to be served on to the respondent, the said rule empowered court to proceed exp-arte if there
was evidence of immediate danger to the property by sale or other disposition provided also
that there was an application to dispense with the service of notice of application to the
respondent. In the instant case, the conditions were satisfied as there was evidence of
immediate eviction of the applicant which will disturb the status quo, besides the application
contained a prayer to dispense with the service of notice on the defendant.
Application for injunction:
Application according to order 41 r. 9 is by chamber summons except those under r1 and 2

which are instituted by notice of motion under r 9.
Opposing the application.
Energo Projekt Niskogradnja Joint Stock Company v Brigadier Kasirye Gwanga &
Anor
Held; From the said affidavit of Aata Stephen, both respondents refused to file affidavits in
reply. In such scenarios, the parties are presumed to have conceded to the application. In the
case of the Samwiri Mussa vs Rose Achen (1978) HCB 297, Ntabgoba Ag. J. (as he then
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.’
This very case binds both respondents. Their failure or refusal or/and 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. I also note that though there are some points of law
involved, there are also some facts that were deponed upon in the affidavit in support of the
application, which needed an affidavit in reply and rebuttal to the application. And the burden
of denying the averments in the affidavit in support of the application squarely lies on the
respondents. In the result, I make a finding that the applicant’s application was unchallenged
by the respondents.
Sam Massa vs. Rose Achen (supra). Where certain facts are sworn to in an affidavit, and these
are not denied or rebutted, the presumption is that such facts are accepted.
Discharge of a temporary injunction:
Afro Uganda Brothers Vs Mpologoma Brothers Gen. Agency Ltd: This was a notice of
motion filed by the applicant/defendant under O.41 r4 to set aside a temporary injunction
granted to the respondent from evicting the Respondent from the shop premises until the suit
would finally be determined. At the time of the application the tenancy agreement had expired
and a contention was raised as to the credibility of the difficulty faced by the applicant.
148
Held: When a temporary injunction order was granted to restrain the applicant/defendant from
evicting the respondent/plaintiff from the premises in dispute there was a serious question to
be tried in the suit and necessary to protect the respondent from irreparable damage. In the
present application however, some changes have occurred. The purpose for which the
temporary injunction was granted by this court had ceased by the affluxion of time and the
respondent had remained tenants at sufferance or trespasser who could be evicted from the
premises in question at the time.
NB: The affidavit in support of the applicant’s application was an affidavit of information and
it was necessary for the deponent to state the sources of his information and belief. The
affidavit was there regular.
NB: Injunctions (temporary) are instituted by way of miscellaneous proceedings.
SECURITY FOR COSTS:
In the event that the court finds in favor of the defendant and in order to avoid the defendant
obtaining an order in vain, the court will order the plaintiff who has filed a frivolous and
vexatious claim to pay costs. This security is taken during the pendency of the proceedings.
O. 26 provides that court may if it deems fit order a plaintiff to give security for payment of all
costs incurred by any defendant.
East Africa Holdings Ltd Vs Madhvani: Held: (Tsekoko – J.) That under O.26 r 1, it is
provided that 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. The language of this rule is extremely plain. It
talks about the past not the future. The court would not make an order for costs likely to be
incurred by any defendants in the future.
Purpose of O.26:
This saves a defendant who is to incur costs in defending a frivolous suit against the plaintiff
which is expensive.
Hellen Aloyo Lugone v Roy Ogwok
Held; The purpose of security of costs as provided under Order 26 rule 1 of the CPR is to
secure a defendant who may incur costs to defend a suit instituted by a plaintiff who cannot
pay his/her costs. The main considerations in such applications are whether the applicant is
being put to undue expense of defending a frivolous and vexatious action, whether the
defendant has a good defence to the suit, and whether such a defence is likely to succeed.
Some of the reasons which might prompt a defendant to apply for security for costs include
149
where the plaintiff is resident abroad and does not have substantial property within jurisdiction
of court.
NB: Only a defendant the right to apply for costs.
When there is reason to believe that a litigant will not be able to pay the costs of litigation.
Faith Asiimwe v Air Uganda
Held;
Order 26 rule 1 of the Civil Procedure Rules whose wording is clear enough, provides that the
court may order the Plaintiff to furnish security for the payment of all costs incurred by the
Defendant. The rule only caters for applications by the Defendant for the furnishing of security
for costs by the Plaintiff. The rule does not cater for the Defendant furnishing security for costs
of the Plaintiff. In the premises the Applicant's application for the Defendants/Respondents to
furnish security for costs cannot be sustained and is accordingly disallowed.
Principles
Namboro vs. Kaala [1975] HCB 315
Ssekandi Ag. J. (as he then was) who heard the application held that:-
“The main consideration to be taken into account in an application for s.f.c. are
(a) whether the applicant is being put to undue expenses by defending a frivolous and
vexatious suit;
(b)that he has a good defence to the suit; and that he is likely to succeed.
Only after these factors have been considered would factors like inability to pay come into
account;
(2) mere poverty of a plaintiff 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.
The principles to guide court in determining applications for security for costs,
were reiterated in G.M COMBINED (Ul LIMITED v. A.K. DETERGENTS (U) LIMITED
150
the summary of the position the merit of the plaintiff’s case or that of the defendant as a factor
in exercising the Courts discretion under 0.26 r.l in favour or against an application by a
defendant for s.f.c., may be stated as follows:-
1. A 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’s claim is bona fide and not a sham;
2. If there’s a strong prima facie presumption that the defendant will in his defence to the
action the Court may refuse him security for costs it may be a denial of justice to order
a plaintiff to give security for costs of a defendant who has no defence to the claim;
3. Whether there’s an 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. Where 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 a substantial

amount, an order security for costs will not be made.
In John Mukasa v M/s Srijaya, after stating the above two authorities,
Held; A Defendant may in certain cases ask for an order to compel the Plaintiff to give
security for the costs of the action, for example where the plaintiff is ordinarily resident
abroad, and has no substantial property, real or personal properly within the jurisdiction of
court.
Grounds of Application:
(1) Where the plaintiff is ordinarily a resident abroad and has no substantial property in the
jurisdiction of court.
151
Farrab Vs Brian: The Defendant in a civil suit in Kenya applied for security for costs on
ground that the plaintiff was a resident abroad. The application was not accompanied by an
affidavit setting out the grounds. The plaintiff objected on the ground that the application was
defective.
Held: That an application for security for costs does not necessarily have to be backed by an
affidavit and the order applies to both companies. Held: If there is a strong prima facie
presumption that the defendant would fail in his defence to the action the court may refuse to
give him security for costs.
Deepak Shaw & Others Vs Manirack & others: The defendant applied or security for costs
on ground that the plaintiffs were resident in Nairobi and had no substantial property in
Uganda.
Held: Ogola J. That in light of EAC, applications of that nature need reconsideration and
referring to EEC/EU cases held that court can not order security for costs against a plaintiff
resident in a member country where proceedings are commenced in a member country. That
Uganda and Kenya had reciprocal arrangements for the enforcement of foreign judgments.
M/s Unidrom Ltd Vs Kawesi: (Egonda Ntende J):
That an order for security for costs would issue if the plaintiff was a foreign company
incorporated in Uganda but has no property or investments in uganda.
John Murray Publishers Ltd v G.W. Senkindu
Held;
When a person instituting a suit in this Country, and being abroad, Court must ensure that
when an adverse order is effectually made against him it will be possible to execute against
him even if he has no property in this Country.
The existence reciprocal enforcement machinery between Uganda and UK is a valid argument
so long as it is proved that the plaintiffs have property or chattels in UK. In this case there is
nothing in the plaintiffs’ affidavit in reply to pin-point their property in the United Kingdom if
any.
Where the judgment creditor lives in Uganda and the judgment debtor’s property is in
England, this court, taking into consideration other circumstances, would decline to order
security for costs. However, it is to be observed that the plaintiffs in this case have not even
shown that they have any property or chattel in England and, if they have, what sort of
property. The property should be such as would satisfy the costs of the applicant in the event
he won the case.
152
Atulkumar Patel Vs American International Banking Corporation:
That the applicant had shown good cause why he should have security for costs and security
for plaintiff’s costs. The fact that 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 grounds for court to order a further
security for costs.
(2) When the plaintiff is merely a nominal or impecunious plaintiff suing for the benefit of
some other person.
Kavin Elah Vs Ahmed Mhindo:; Held: That the inability of the plaintiff to pay his debts is not
sufficient reason to justify ordering for security for costs.
(3) Where the plaintiff is an insolvent company
A.K.Detergent Vs. G.M Combined.

Whether order thereof may issue because plaintiff company is highly indebted what is the
quantum there for.
Held: Taking into account the fact that the respondent/plaintiff was heavily indebted most
of her assets charged, was under receivership, winding up proceedings had commenced, it
was necessary that she furnishes security for costs of the suit on which the
defendant/applicant would fall back in event the suit went against the plaintiff/respondent.
Katabalwa Philip Vs. Ntege Ssebagala & anor

Held: Insolvency of the litigant is not a ground for an order for security for costs. An order
for security for costs would be granted if the petition is merely vexatious and frivolous
(4) Where the plaintiff has deliberately omitted or misstated his address with the view of
evading the consequences of litigation.
Scope O. 26 r 1:
Deepak K Shah v Manurama Ltd
Held; A fundamental consideration, is the fact that the power of the Court to order a Plaintiff
to pay security for costs is entirely a discretionary matter for the Court.
Goodman Agencies Ltd v Hasa Agencies
153
Referring to Rule 101(3) of the Supreme Courts, held that clearly, the above provision of
the rule gives very wide discretion to the court to order further security for costs. The only
fetter to that discretion is that which applies to all judicial discretion, namely, that it must be
exercised judicially.
Procedure of Application for Security for Costs:
Application for security for costs is under O.27 r 3 and is brought by chamber summons.
Time within which the application can be granted:
Transroad Ltd Vs Bank of Uganda: That rule 104 (3) allows court to make an order for
further security for costs at any time if it thinks fit but the law is settled that that order should
not result in prejudice to the respondent. An inordinate delay may cause such a prejudice and
which onus is on the applicant to show that such delay has not prejudiced the party being
asked to provide further security for costs.
Held: In the instant case, the appeal was lodged on 27/7/95 but with applicant waited until
8/11/97 to bring the present application. This inordinate delay was not explained and the
application having been made after the appeal had already been set down for hearing only 11
days to the hearing date the application had failed to discharge the onus to prove that the delay
would not prejudice the respondent if the order was granted. Application dismissed. Applied in
154
Kakooza Jonathan v Kasaala Growers Co-op Society
held;
While 101(3) may appear to allow applications for security to be lodged in court "at any
time", a number of cases indicate that lateness in filing an application for security may
be a factor to consider against the applicant. See, for example, Lalji Gangji - Vs- Nathoo
Vassanjee (supra) and Noormohamed Abdulla - Vs- Rauchhodbhai J. Patel (supra).
In Premchand -Vs- Quarry Ltd [1971] E.A 172 the court when it was considering an
application for security for costs stated:- “but I direct myself in accordance with the
decisions of this court in Lalji Gangji - Vs- Nathoo Vessanjee [l960] E. A. 315 and
Noormohamed Abdulla - Vs- Patel [1962] E. A. 447 that delay in making applications
of this nature is a material consideration: that the onus is on the applicant to show
that such delay has not been prejudicial to the applicant; and that the power to order
security in respect of payment of past costs is one which should be sparingly exercised.
"
In Premchand -Vs- Quarry Services Ltd [1971] E.A the appeal was filed in August
1970 and the application was filed on 2~h November 1970 for further security for the
costs of the appeal and for past costs. The difference in dates was a period of about four
months. It was held that there was delay in applying for security and that the applicant
had to show that the delay was not prejudicial to the respondent. In Lalji Gangji -Vs-
Nathoo Vassanjee (supra) a period of about five months was held to be a delay in filing
the application for security. In Noormohamed Abdulla -Vs- Ranchhodbhai J. Patel
and Another (supra) there was a delay of about 15 months in filing the application. It
was held that there was inordinate delay in making the application and since the onus to
show that this delay did not prejudice the appellant had not been discharged, the
application must be refused.
In the instant case a year passed from the date of filing the appeal to the date of filing
the application. It is difficult to see why the applicants stated that this application has
been made without delay. Therefore, in the instant application, instead of the applicants
saying that there was no delay, they should have admitted it and showed that it was not
prejudicial to the respondent. They did not do so.
Burden of proof.
It is worth pointing out at this time that it is well settled that in ail application for further
security for costs, like the instant one, the applicant bears the burden to satisfy court that the
circumstances of the case justify making the orders sought In Lalji Gangji - vs - Nathod
Vasanjee (1960;E4. 315, Windham, Windham, JA, considered the application of rule 60 of the
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Rules of the then Court of Appeal for Eastern Africa which was in “pari material” with rule 101
(3) of the Rules of this court and on page 317 said:
"- - - - - under rule 60 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 averring that the security already
deposited for costs of the appeal is inadequate or that costs in the action below ordered
in his favour, have not been paid, impose any obligation upon the court to grant his
application.“
The above statement was cited with approval in a number of cases in this court, including by
Oder JSC (RIP) in Patel - vs - American Express International Banking Corporation, Civil
Appeal No.9 of 1989 and by Mulenga, JSC, (as he then was), in Bank of Uganda - vs - Joseph
Nsereko and 2 Others, Civil Application No. 07of 2000.
Quoting the case of Lalji Gangji - vs - Nathod Vasanjee, the Supreme Court Held that in
applications for further security for costs or past costs the burden lies on the applicant to
show why that relief should be granted.
Security for costs and further security for costs in the Supreme Court.
In Margaret and Joel Kato v Nuulu Nalwonga
Held; Rule 101 of the Supreme Court Rules provides for a party instituting a civil appeal
to lodge in court Uganda Shillings 400,000/= as security for costs. The court also has
powers under Rule 101(3) of the same rules to direct that further security for costs be
given. We have noted however that counsel for the respondent did not move court to
invoke its powers under this Rule and we accordingly make no order for further security
under this Rule.
Court was not persuaded by counsel for the respondent’s argument that the applicants would
not in any way be prejudiced by the order to deposit security for due performance of the
decree. The applicants, being individual litigants and not a corporate entity, would most
certainly find it onerous if they were to be required to deposit the Shs. 50,000,000/= proposed
by counsel for the respondent, as this is, by no means, a small sum of money.
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Rule 101(3) of the Rules of the Supreme Court provides:-
"The court may, at any time, if the court thinks fit, direct that further security for costs
be given and may direct that security be given for the payment of past costs relating to
the matters in question in the appeal."
In Goodman Agencies Lid Vs Hasa Agencies (K) which was decided by a single judge, the
court refused to order the respondent to give further security for costs. “It would be a denial
of justice to order the respondent to give security for costs of the applicant which has no
likelihood of success in its defence against the respondent's appeal," the learned judge stated in
his ruling.
In a reference to a coram of three justices of this court, however, the court reversed the decision
of the single judge and ordered the respondent to give further 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 that of his counsel, (2) that the respondent
had no known assets in Uganda or Kenya, (3) that the respondent had suggested before the single
judge that the respondent could offer Shs. 700,000,000/= as security for costs, and (4) that
contrary to the opinion of the single judge, prima facie there were doubts about the success of the
respondent's appeal.
We would add that the amount of Shs.400,000/= in rule 101 as security for cost was fixed fifteen
years ago in 1996. Since then the value of the shilling has changed enormously. Considering that
the respondent was prepared to offer Shs.700m/= as security for costs when the application was
before the judge, we order that the respondent must deposit Shs.200m/= within forty five days
from the date of this ruling as security for costs. This figure is based on the fact that the
respondent has nothing to do with costs in High Court.
In G. M. Combined (U) Ltd - Vs- A. K. Detergents (U) Ltd (supra) Oder, JSC, after
considering several cases on the question of security for costs was of the view that the
determining factor in allowing or not allowing such applications was the prospect of
success, whether or not the applicant was likely to succeed in the substantive case. "It
may be a denial of justice to order a plaintiff to give security for costs of a defendant
who has no defence to the claim," the judge stated
In Lindsay Parkinson Ltd - Vs- Tiplan Ltd (supra) Lord Denning M. R.

stated:-
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"Turning now to the words of the statute, the important word is "may". That gives the
judge discretion whether to order security or not. There is no burden one way or the
other. It is a discretion to be exercised in all the circumstances of the case if there is
reason to believe that the company cannot pay the costs, then security may be ordered,
but not must be ordered. The court has discretion which it will exercise. The court has a
discretion which it will exercise considering all the circumstances of the particular case
whether the Company’s claim is bona fide and not a sham and whether the
company has a reasonably good prospect of success. Again it will consider
whether there is an admission by the defendant on the pleadings or
elsewhere that money is due. If there was a payment into court of a
substantial sum of money (not merely a payment into court to get rid of
nuisance claim), that too would count. The court might also consider
whether the application for security was being used oppressively so as to try
and stifle a genuine claim..... ".
Held;
Rule 101(3) of the rules of this court does not specifically mention inability to pay costs as a
ground for ordering security of costs. This does not of course mean that it excludes inability to
pay as a factor for consideration.
Under rule 101(1) of the rules of this court security for costs of Shs. 400,000/= is
mandatory for civil appellants unless they are excused under rule 109. Taking into account
the present value of the Uganda shilling this amount of Shs. 400,000/= cannot be
considered as reasonable security for costs that would satisfy most successful respondents
in this court. Even when this amount was fixed in 1996, Shs. 400,000/= was not much
being no more than US.$350. The policy behind fixing this amount as security for costs is
difficult to understand considering its insufficiency in covering most respondents' taxed and
awarded costs in this court. It should be reviewed.
It is clear that the sub-rule gives the court discretion to give security. However, the rule does
not offer guidance as to how this discretion is to be exercised, so guidance has to be sought
from decided cases. Court considered the above authorities in Goodman, GM Combined,
Lindsay and Namboro v Kaala and taking into account guiding principles contained in the cases
cited above, held in this case;
Security for past costs under rule 101(3) of the Supreme Court Rules was not intended to be a
substitute for or an alternative to execution. That the application for security for past costs is
premature because it merely stated that the awarded costs have not been paid and, therefore,
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security for those costs should be provided. Therefore, in the circumstances execution or some
other concrete step should have been taken to recover the costs.
While lack of assets is an important factor to consider, it is not a sufficient factor especially in
relation to persons that do not fall under Section 404 of the Companies Act.
Suits against companies; S.404, Companies Act: Where a limited company is a plaintiff in any
suit or other legal procedures any judge having jurisdiction over the matter, may if it appears by
credible testimony that there is a reason to believe that the company would be unable to pay the
costs of the defendant, if successfully in his defence required sufficient security to be given and
may stay all proceedings until security is given.
Held; The above section empowers court where the plaintiff is a limited liability company and it
appears on credible evidence that there is reason to believe that the company will be unable to
pay the defendant's costs if it succeeds in its defence, to require the company to give sufficient
security for the defendant's costs and may stay all proceedings until the security is furnished.
In Sir Lindsay Parkinson & Co. Ltd. - vs - Triplan, (1973) I QB 609, cited in G. M Combined (U)
Ltd. (supra), section 447 of the Companies Act of England which was in ''pari materia” with
section 404 of our Companies Act was considered. It was stated in that case that the discretion
given in section 447 was so unfettered that even if a plaintiff or an appellant was in financial
problem and therefore, unable to pay the costs of the suit or appeal if the suit or the appeal failed,
the court may still refuse to order security for costs considering other circumstances of the case.
For example, if there is strong prima facie presumption that the defendant or the respondent to
the appeal will fail in his defence to the suit or appeal, the court may refuse him security for
costs. The reason being that it will be a denial of justice to order the plaintiff or the appellant to
give security for costs of the defendant or respondent who has no likelihood of success in his
defence against the plaintiff's claim or appellant's appeal
In G.M Combined (U) Ltd, where the appellant was under receivership because it could not pay
its debenture holders; it was also under liquidation as it was unable to pay a judgment creditor
and was indebted to many creditors; it was involved in a multiplicity of suits. None of these was
brought about by the conduct of the respondent. In these circumstances the Supreme Court held
on appeal that the order for security for costs was justified.
Court noted that all those circumstances do not obtain in the instant case save the existence of
credible evidence for reason to believe that the respondent will be unable to pay costs of the
applicant if it lost the appeal. Persuaded by the above interpretation, court held that justice
should not be the preserve of the rich. Existence of credible evidence for reason to believe that
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the respondent will be unable to pay the applicant's costs if the respondent lost the appeal is a
factor that strengthens the applicant's case for an order for further security for costs depending
on other circumstances of the case, for example, satisfying court that the respondent's appeal
has no reasonable prospect of success.
Security for costs and further security for costs in the Court of Appeal.
R. 105(1) Court of Appeal Rules
Ramzanali Mohamedali Meghani v Kibona Enterprises
Held;
The learned trial judge correctly applied the principles governing the liability to furnish security
for costs. I agree that this is a proper case in which to grant an order for security of costs. The
appellant does not reside in Uganda and has no known property here. The present case is on
almost on all fours with that case of Bank of Uganda versus Banco Arabe Espranol S.C.U civil
application No. 20/98. It was held in that appeal that absence of property within the jurisdiction
of the court was sufficient to justify grant of an order for security for costs.
However, it would be wrong to grant an order for security for costs in excess. An order for
security for costs should not be used as a weapon to enable the strong to deny the weak access to
courts of law or justice -See Lindsay Parkison & Co. Ltd versus Triplan (1973) 10. B.M. 609 at
page 617. However, the sum of shs. 80.000.000/= in the circumstances of this case was on the
high side. This court is for that reason justified to interfere with the discretion of the trial judge
on the quantum of security for costs granted by the lower court. Sum reduced to 15m.
Failure to deposit security for costs.
Under O. 26 r2 if the security is not furnished in the time given, the court shall make an order
dismissing the suit unless the plaintiff is permitted to withdraw the suit and where the suit is
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dismissed, the plaintiff can only apply to reinstate the suit by showing that he was prevented by
good cause from furnishing the security for costs in time. On reinstatement, the suit shall then
proceed.
Bank of Uganda v Banco Arabe Espanol,
Banco Arabe Espanol, filed a suit in the High Court, to which I shall hereafter refer “as the
principal suit,” for recovery of a debt owed to it in the sum of US $ 1,713,665.75. It sued the
Attorney General and Bank of Uganda, as co-defendants, but for reasons not material to this
reference, the Attorney General was struck out from the suit by order of the Court and Bank of
Uganda remained the sole defendant.
Before commencement of the trial, on application of Bank of Uganda, the Court ordered Banco
Arabe Espanol to provide security for costs, which the latter failed to do in time. As a result of
the failure the principal suit was dismissed under 0.23 r. 2 of the Civil Procedure Rules.
However, subsequently, Banco Arabe Espanol obtained an order reinstating the suit. Bank of
Uganda appealed to the Court of Appeal against that order and its appeal was allowed. Banco
Arabe Espanol, in turn appealed to the Supreme Court. Its appeal was allowed with costs holding
that a dismissal of a suit for failure to provide security for costs under Order 23 of the Civil
Procedure Rules is not a bar to pursuing the claim later.
Security for costs in election matters.
See Rule 5 Parliamentary Elections (Election Petition Rules)
s. 58 Parliamentary Elections Act 2005.
ARREST AND ATTACHMENT BEFORE JUDGMENT – O.40 r 1:/Mareva
An arrest and attachment before judgment is a plaintiff remedy. Where court is satisfied that the
ends of justice so requires it may order a defendant to furnish security or produce any property
belonging to him or her and place it to the disposal of the plaintiff or order attachment of such
property before judgment is given by the court, the procedural remedy is provided under S.64 of
the CPA and order 40 of the CPR.
O.40 provides for the interlocutory of arrest and attachment before judgment.
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A plaintiff may reserve the proceeds of his judgment if successful by getting an order from court
that the defendant furnishes security for his appearance failure of which results in civil
imprisonment.
The order provides; O. 40 r 1
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—
(i) has absconded or left the local limits of the jurisdiction of the court;
(ii) is about to abscond or leave the local limits of the jurisdiction of the court; or
(iii) 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
(b) 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.
UEB (in liquidation) v Royal Van Zanten

held
Judging by the construction of 0.40 r 5 its object is to prevent any attempt on the 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. If the defendant is a person of means, the remedy lies
elsewhere.
Circumstances For Application:
(1) If there is evidence that the defendant has left the local limits of the jurisdiction of court
or is about to leave the local limits with a view………………..
(2) When there is evidence that the defendant has or is bout to dispose of his property with a
view of defeating any decree that may be passed against him or her.
Pyarali Datardini –Vs- Anglo American Amusement Park IV ULR 28.
Court considered the words “with intent to delay or obstruct.” The Court held in that case that it
was not necessary for the plaintiffs to show that the defendant intended to obstruct or delay the
plaintiff in the execution of his decree in order to justify an application to the Court for his arrest
before judgment; that it was enough if his going away would have that effect. A demand had
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been made upon the defendant for payment of rent for premises upon which he held his show in
Kampala and the defendant left the jurisdiction next day without making any arrangement with
the plaintiff. Court considered the fact that it was extremely improbable that this traveling show
would again be in Uganda in the near future. The Court found the order prayed for appropriate
to the circumstances of the case and the Judge was quick to add:
“I am not to be taken as holding that in all cases when a defendant leaves the jurisdiction
the order for arrest – on failure to pay or find security for the amount sued for – will be
made. It is an unusual remedy and will only be granted in appropriate cases.”
Abby Mugimu –Vs- Basabosa HCCS No. 922 of 1990 reported [1991] ULS LR 157.
he defendant was a non-national. It was feared that he would dispose of the whole property and
thereafter abscond from the jurisdiction and therefore leave the whole bill to be settled by a co-
defendant. The Court had occasion to consider what should be considered before attachment is
allowed. It was held, inter alia, that before the Court could exercise its discretionary powers
under 0.40 by ordering attachment of property before judgment or furnishing security, there had
to be real evidence that the defendant was about to leave the country or to sell the property and
obstruct or delay justice
The question of intent was further considered in the following case.

UEB (in liquidation) v Royal Van Zanten
Held; that under this rule, (O 40 r 5) 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 passed against it.
Court then distinguished the above two cases.

That in Datardini, Court was justified to think that in the circumstances of that case, whether or
not the defendant’s disappearance was intended, his going away would leave the plaintiff with no
assurance that he would ever be paid. The Court did not state, as implied by learned counsel for
the respondent, that intent was not a necessary element for proof in a case of this nature. Court
believes that this was sound reasoning. The circumstances of the case warranted that particular
decision.
Whereas the Datardini case was an application under 0.36 r. 1 (a) which deals with the arrest of
the defendant if there is cause to do so, the instant application was under 0.36 r. 5 (1) (a) which
basically deals with the furnishing of security by the defendant in circumstances stated therein.
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Whereas the Court in the Datardini case appeared to relax the rule regarding intent, albeit with
caution, the Court in the Abby Mugimu case was emphatic that there had to be real evidence
that the defendant was about to disappear.
Per Yorokamu Bamwine
The similarity between the Datardini case and the Abby Mugimu case is that the two
cases involved human beings whose intention could not easily be discerned. The
appellant herein is not a human being capable of disappearing like the ones in the two
cited cases. The appellant is a statutory body. True it is in the process of winding up and
winding up leads to de-registration. However, there is an elaborate process of doing so. I
don’t find the respondent’s act any different from a situation where the plaintiff feels that
the defendant in his case is close to his death and he applies for an order to attach his
property pending judgment merely because in the event of death he may be
inconvenienced. The law of succession would simply take care of that in the same way
the law of divestiture affords the respondent a remedy herein. In the absurd scenario I
have talked about above, the position would of course be different where the defendant
because of the terminal illness sets out to sell his assets before his death and the plaintiff
gets to know. Even then intention must be established. The Learned Editors of MLJ’s
CODE OF CIVIL PROCEDURE (of India) Vol. 4 at p. 433 while commenting on a law
in pari materia with ours have this to say:
“For passing an order [under O40 r1] the intention of the defendant is
sine qua non. But that intention is an internal fact. Direct evidence can
hardly be expected. The question of intent alleged by the plaintiff has to
be determined having regard to the particular facts and circumstances of
each case.”
I agree. Sine qua non is the latin equivalent of “something that is essential before you
can achieve something else” in the English language according to OXFORD Advanced
Learners Dictionary, 6th Edition at p. 1106. In the instant case, it is apparent to me that
the respondent’s fear is not only exaggerated but also uncalled for.
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In these circumstances I accept the submission of learned counsel for the appellant that
the Registrar’s holding that the respondent needed not to prove intent on the part of the
appellant was made in error
Potgieter v Stumberg and another [1967] 1 EA 609
Held;
That rule enables the court in certain suits, when satisfied by affidavit or otherwise “that the
defendant is about to leave Kenya under circumstances affording 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”, to issue a warrant to arrest the defendant and bring him
before the court to show cause why he should not furnish security for his appearance. The court
is also empowered to include in the warrant of arrest a specified sum which, if tendered, would
obviate the necessity for the execution of the warrant.
That if the evidence before the judge at the time of making the order was then insufficient the
order cannot be justified upon any evidence which is placed before the court subsequently. There
was no evidence before the judge who made the order to enable him to say that the defendant
was about to leave Kenya at all, let alone in the circumstances set out in O. 38, r. 1 (b) (0. 40 r
1)of the Civil Procedure (Revised) Rules, 1948; the order should not therefore have been made,
and should have been set aside;
Scope of Application:
Order 40 does not apply to suits of the nature spelt out in (d) and (f) of S.12 CPA. The rationale
that no one can leave the immovable property
Rules not applicable to suits falling in paragraphs (a) and (d) of S.12, CPA.
Norevidra A. Pate Vs Soraj. B:
In that case the plaintiff instituted a suit for the following orders:
(a) Obtain possession of a plot by demolition of a stone

(b) 5,400= as damages
(c) Costs of the suit
(d) Any other reliefs.
The plaintiff proceeded under O.40 and the defendant was arrested and brought before court for
failing to show cause, she was ordered to furnish security for her appearance on application. She
contended that the suit was by S.12, CPA excluded from O.40 r 1
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Mc Kisack CJ held: That if the suit was only for the recovery of possession or only for the
recovery of possession of together with a claim for rent or mesne profits, then clearly O.40 r 1
would not be applicable to the suit but this is a suit that falls partly under paragraph (a) and
partly (e) and in so far as the suit refers to the latter paragraph, O.40 r1 is applicable. The
plaintiff was entitled to have recourse to O.40 r 1 in respect of that part of the suit which is not
excluded from the application of that rule.
NB: Court should consider the question of security or not to cover aspects covered under S.12,
CPA.
Ivan Samuel Ssebaduka v Warid Telecom
The Applicant brought this application under 0.40 rr 5 and 12 C.P.R; seeking an order directing
the Respondent to furnish security or to produce and place at the disposal of the court, all its
assets and property or the value of all its assets and property to satisfy the decree that may be
passed against it in the main suit.
Held;
The provisions of 0.40 r 5 (1) C.P.R 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 real evidence that the Respondent is about to leave the country, sell
the property or delay justice” – See the case of Uganda Telecom Ltd vs. Justus Ampaire
HCCS 599/2003 [2001-2005] HCB 95 and V.K. Nataraja Gouder vs. S.A. Bangoru Reddiar,
AIR 1965 Mad 212.
In the current case, not only is the Respondent just 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 includes
most have been sold to EATON TOWERS LTD and Bank accounts closed.
That once the allegations are well founded through affidavit evidence, court is bound to issue
an order to the Respondent to furnish security”. Application allowed.
In Stanbic Bank v New Makerere Kobil Station it was held that no attachment before
judgment can issue where it affects the rights of third parties. Court released a bus which had
been attached when it was shown that it belonged to a third party.
Rev. Ezra Bikangiso V New Makerere Kobil Station M. A. 10 of 2010. Held; a lessee,
without special authority to the contrary cannot sell what is owned by a lessor.
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Yahaya Lukyamuzi Vs G.Beijuka:
The respondent brought an application under O. 41, CPR among others seeking that the applicant
furnishes security for the decretal sum, interest and costs that may be awarded and in the
alternative, for an order that the applicant’s stock in trade be attached. The Trial Judge granted
the application and ordered that failure to attach would result in detention of the defendants in
civil prison for a period not exceeding 6 months.
On appeal: held: That the application ought to have been brought under O40 and not 41, that the
orders made by the judge could not stand because they included others that had not been prayed
for.
Rule 3: By this rule, if the defendant fails to show cause the court has powers to order him or her
to furnish security for him/her appearance.
Rule 4: Failure to do so, the court may commit the defendant to civil prison to be detained until
the decree is satisfied but such detention should not exceed 6 months and does not exonerate one
from liability.
Rule 5:- On attachment:
For situations where the court may attach the defendant’s property before judgment and these
include:
1) Where the plaintiff is about to dispose of the whole or any part of his property.
2) About to move from the jurisdiction of the court.
3) Has quit the jurisdiction of the court leaving the property with a view of obstructing or
defeating the decree passed.
Rule 6:
Court may call upon the defendant to show cause why the property should not be sold.
MLJ Commentaries; On the Code of Civil Procedure at page 436 [equivalent to O.40 r 5-
Uganda].
Rule 5 clearly lays down that court, in the first instance must direct the defendant to furnish
security or show cause why security should not be furnished before court attaches the property
before judgment before complying with this requirement. The attachment would be illegal under
will confer any benefit on the decree holder.
Rule 10:- Such attachment does not affect the rights and interests of 3rd parties in the property
attached other than those that accrue after attachment.
NB: Application made by chamber summons.
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In England the procedure is similar to this, was non prevalent till 1975 when the courts devised
the mareva injunction.
Mareva Compaisa S.A Vs International Bulk Carriers (1980): the defendants were chatterers
of the plaintiff’s cargo ship under terms that payment of the charter fee be in installments. The
defendants defaulted on the 3rd installment but at the time the ship was far away from England,
on its way to India. The plaintiff could not assume its possession. However, the defendant had
money in a London Bank and the plaintiff made an application exp-arte for an injunction
restraining the chatterers from removing their money or disposing of it out of jurisdiction. The
injunction was granted.
Held: That jurisdiction to grant such an injunction derives from the judicature Act which
empowers the court to grant an injunction wherever it is convenient and just.
See S.40, Judicature Statute, 1996:
Nothing can estop an applicant from applying for any remedy from the high court.
Attorney Pillar Orders
This applies against a defendant to allow an independent attorney to enter the defendant’s
premises for purposes of searching and seiing documents relevant in the determination of a suit.
It is a form of discovery that can be combined with other methods of disclosure. Attorney Pillar
orders are normally sought in cases of breach of copyright and patent.
The orders are normally exparte so that the defendant is not given an opportunity to remove
incriminating evidence.
Attorney Pillar v Manufacturing process
Uganda Performing Rights Society Limited v Fred Mukubira (Misc.App.No.818 Of 2003)
This ruling arises from an application by way of Notice of Motion (Exparte) under Sections 33,
38(1) and 39(2) of the Judicature Act (Cap 13); Sections 22 and 98 of the Civil Procedure Act
(Cap 71) and Order 48 rules 1 and 3 of the Civil Procedure Rules (S.I 63 — 3). The Applicant
seeks orders that —
1. That the Respondent does permit the Applicant to enter upon his residence and business
premises or such parts thereof as shall be occupied or used by the Respondent, for the purpose of
(a) Inspecting all assets, tapes, documents, materials or articles relating to infringement of the
Applicant’s Copyright in the musical works of the Assignors; and (b) Removing into custody of
this honourable court all cassette tapes, documents, materials or articles relating to the
unauthorised recording, compilation, distribution and/or sale of the Assignors’ musical works.
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Held;
With regard to the Anton Piller Order the authorities reviewed seem to suggest that this order
may be granted following a unique application made ex parte.
Lord Denning MR. in the Anton Piller KG Case (Supra) stated
“... it seems to me that such an order can be made by a Judge ex parte, but it should only be made
where it is essential that the Plaintiff should have inspection so that justice can be done between
the parties; and when, if the Defendants were forewarned, there is a grave danger that vital
evidence will be destroyed, that papers will be burnt or lost, or hidden, or taken beyond the
jurisdiction, and so the ends of justice be defeated and when the inspection would do no real
harm to the Defendant or his case.
An Anton Piller Order is not a search warrant which entitles a holder to force his way into the
Defendants premises against his will. The Defendant by the Anton Piller Order is only enjoined
by court to “do permit” the entry, inspection or other direction of the court. The order should be
served on the Respondent attended by counsel for the Applicant who is and must strictly act as
an officer of the court. The Respondent must be given an opportunity to consider the order and if
necessary consult his/her own counsel. If entry is refused, the Applicant should not force his way
in. The Applicant however may bring the refusal to the notice of the court, if need be by an
application to commit for contempt of court. The Respondent should be put on notice of this
consequence.
The three essential pre-conditions for the grant of an Anton Pillar order as stated by Ormrod LJ
in Anton Pillar KG v Manufacturing Processes Ltd & Others (supra) are:
1. There must be an extremely strong prima facie case.
2. The damage, potential or actual, must be very serious to the plaintiff.
3. There must be clear evidence that the defendant has in its possession incriminating
documents or things and that there is a real possibility that it may destroy such material
before any application inter-parties can be made.
JUDGMENT ORDERS, DECREES AND COSTS
By virtue of S.25 of the CPA, the court after the case has been heard, shall pronounce judgment
and on such judgment a decree shall follow, provided that if a defendant does not file a defence
as may be prescribed, court may give judgment to plaintiff in default.
There are various types of judgment that can be issued by the court:-
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a) Judgment in default
May be issued by court under O.9, r.6 i.e. where plaintiff has filed a suit claiming a definite sum
of money only and the defendant does not file a defence within the time allowed in the summons
or at all. In those cases, court may enter a default judgment.
b) Interlocutory judgment
Given by court under O.9 r.8 in cases where the plaintiff files a suit claiming general damages
e.g. only or value for unlawful detention of goods, and having done so, and served the defendant,
the defendant does not file a defence within the time allowed in the summons or at all. In this
case, court may enter an interlocutory judgment determining liability only e.g. negligence cases
that neglent(only).
c) Summary judgment
Under O.36 resulting from summary proceedings where a plaintiff presents a specially endorsed
plaint accompanied by an affidavit, taking out summons on a summary suit requiring the
defendant to apply for leave to defend, serving such summons onto the defendant and that the
defendant does not apply for such leave within the time allowed in the summons or at all, or
having applied for such leave, the court refuses to give him such leave to defend the suit, in those
cases the court may give a summary judgment.
d) Consent judgment
The plaintiff having filed a suit, defendant having filed a defence, plaintiff and defendant agree
on the terms of the judgment. Those terms are reduced into an agreement, are presented to court
and court endorses those terms as a consent judgment.
e) Judgment on admission
This is provided for under O.13, r.6. It applies in cases where the plaintiff has filed a suit and the
defendant in his defence or otherwise admits the claims may, on the application of the parties,
enter a judgment on admission.
f) Ordinary judgment
Court having heard all the parties, and heard all the evidence, pronounces judgment. Under
O.21,r.1, it is provided that in suits where a hearing is necessary, the court after the case has been
heard shall pronounce judgment in open court, either at once, or on some future day, of which
notice shall be given to the parties or their advocates and such judgment pronounced by the judge
shall be dated and signed by him in open court at the time of pronouncing it.
O.21 r2 A judge has powers to pronounce a judgment written and signed but not signed by
another judge of the High court. And the registrar if so directed by the Judge of the High court
may pronounce a judgment written and signed by the judge of the high court
Rule 3 (1) A 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. (2) A judgment pronounced by a judge other than
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the judge by whom it was written shall be dated and countersigned by him or her in open court at
the time of pronouncing it. (3)A judgment once signed shall not afterwards be altered or
added to except as provided by section 99 the Act or on review.
S.99 provides what is called the “slip rule” which provides for correction or amendment of
clerical or arithmetical mistakes in judgments, decrees or orders arising therein from any
accidental slip or omission. This may be done on the court’s own motion or on application of the
parties. [Ref: Libya Arab Bank v Adam Vassilialis (1985)-Supreme Court decision.]
Under O.21 r.4, such judgments shall contain a concise statement of the case, the points for
determination i.e. the issues, the decision thereon and the reason for such decision. Court has to
make its findings or decision on each of the issues framed, unless it’s finding on one or any
number of them is sufficient to dispose of the case
Rule 5; The court is required to state each decision on each issue and reason thereof unless in the
finding of any one or more issues is sufficient for the decision of the suit
Held; that a judgment must be signed and dated by a judge or Magistrate who wrote it at the
time of pronouncing it. A judgment that is not signed and dated in accordance with Order 21
rule 3(1) of the Civil Procedure Rules is no judgment at all and is therefore invalid and that
neither oral evidence of the Judicial Officer who wrote it nor certification could validate such an
unsigned judgment. Thus court found that there was no valid judgment in this case.
DECREE;
After judgment the decree shall follow. Decree defined in S.2 of the CPA as the ‘formal
expression of an adjudication expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit, and may be either preliminary or
final.” The decree marks the end of process (unless appeal etc) a decree is property and can be
assigned by decree holder.
Under O.21 r.6 it is provided that the decree shall agree with the judgment. It shall contain the
number of the suit and shall specify clearly the relief granted or other determination of the suit
and it shall bear the date of the day the judgment was delivered.
Under O.21 r.7(2) it shall be the duty of the party who is successful in the suit in the High court
to prepare without delay a draft decree and submit it for the approval of the other party to the
suit, who shall approve it with or without amendment, or reject it without undue delay. If the
draft is approved by the parties, it shall be submitted to the registrar, who if he is satisfied that it
is drawn up in accordance with the judgment, shall sign it and seal the decree. If all the parties
and the registrar do not agree to the contents of the decree within such time as the registrar shall
fix, it shall be settled by the judge who pronounced the judgment and the parties shall be entitled
to be heard thereon if they so desire.
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In Eastern Province Bus Company v G (1971)ULR 87it was held that under O.18, r.7 it is the
duty of the successful party to have in the first instance prepared the draft decree, but if he fails
to do so, the other party who desires to appeal against the judgment will first have to take steps
to have the decree extracted.
Similarly, in Asad Iweke v Livingstone Oala (1985) HCB; court found that the general duty of
extracting a decree is imposed on the successful party because it is presumed that he will be
anxious to execute the judgment. That a non-successful party anxious to appeal also has a duty
to take necessary and possible steps to prosecute his appeal and that this includes extracting a
decree, which is a prerequisite for filing an appeal.
All these cases are to the effect that it is a duty of the successful party to extract the decree.
Because it is view that he will be anxious to continue with proceedings and get judgment. It is
what to be executed if there are any execution proceedings.
COSTS.
Under S.27[1] “subject to such conditions and limitation as may be prescribed, and the
provisions of any law for the time being in force, the costs of and incidental to all suits shall be
to the discretion of the court or judge and the judge or court shall have the full power to
determine by him and out of what property and to what extent such costs can be taken and if all
the necessary directions for the powers are all set. The fact that the court or judge has no
jurisdiction to try the suit shall be no bar to the exercise of such jurisdiction provided that costs
of any action, cause or other mater or issue shall follow the event unless courts shall for good
reason other wise order.
It is presumed that expenses are incurred in civil proceedings, the rules recognizes that those
expenses are recovered i.e. costs
After judgment has been given in action, the judge will have to look at the costs, to determine
how they are born i.e whether a particular party must pay for his own costs, or will have them
paid by the other side and on what basis they are to be accessed.
A party awarded costs can only obtain from the other side so much as it is properly allowable by
the court on the particular basis on which such costs are assessed otherwise called taxed. If these
costs allowed by court are called taxed costs and the process is called taxation.
The issue of costs only arises after the court has made an order for cost.
Two cases where the order is not necessary.
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i. Where under order 25 the plaintiff withdraws the suit without leave of court where
leave is needed the costs are within the discretion of the court.
ii. Where the party accepts payment in satisfaction no order for costs is can be made.
The costs means those expenses and entitlements scrutinized and allowed by a taxing master in
accordance with the taxation rules. And taxation can only begin with a taxation notice
accompanied by a bill of costs which is in effect an invoice which shows the sums claimed by
the party entitled to costs. The bill is prepared by the party entitled to costs showing the actual
charges in separate columns and every column must be totalled up and the bill is left for taxation
by the taxation master who is a registrar in case of the high court or magistrate in magistrate
court.
The hearing is conducted in an informal way and when it is finished and all the queries have
been settled, the bill is led to the taxing master who determines the bill and issues the certificate
of taxation settling the amount fixed .
Costs involve professional fees for engaging advocates otherwise called instruction fees provided
for by the advocates Act and computed in accordance with the Advocates remuneration and
taxation of costs Rules. The rules provides for drafting, drawn and perusing documents and
handling both contentious and non contentious maters. Both involve fees for filing court papers
under the court fees rules, travel expenses of witnesses, attendance to court and all expenses
admitted in court as reasonably flowing from the action.
Further, in Ernest Ato v Aliwala, court found that costs in any suit have no limit and that the
magistrates courts can award costs which exceed the pecuniary jurisdiction of the presiding
magistrate, provided they were incurred during the course of the litigation.
In Uganda Development Bank v Muganga Construction51, the parties agreed that the sum
claimed in the plaint was incorrect. On ascertainment of the correct sum, which was less that the
original claim a consent judgment was entered for the plaintiff for them same. The parties
disagreed on the incidence of costs. The plaintiff argued that he was entitled to the costs; while
the defendant contended that each party should bear its own costs sine the plaintiff claimed a
wrong amount to start with. Court held that under the CPA, S.27, costs should follow the event
unless the court otherwise orders. That the Act gave the court a discretion but that discretion
had
to be exercised judicially. The court found that a successful party can only be denied costs if it is
proved that but for his conduct the action would not have been brought. That costs follow the
event even where a party succeeds only in the main purpose of the suit.
Whether costs should be awarded in public interest litigation?
The authorities have emphasized that costs in Public Interest Litigation cases should only be
awarded in rare cases
173
In the Besigye Kizza v Yoweri Museveni case, Odoki (CJ) stated:
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 a successful party costs of litigation must be exercised judicially
and for 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 in exceptional circumstances.
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 raging poor litigants from accessing justice
through award of exorbitant costs.
In the present petition, I am of the considered opinion that the

interest of justice requires that the Court exercise its discretion
not to award the costs to the Respondents. I agree with Mr.
Balikuddembe 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 culture of
peaceful resolution of disputes … .
In the same Presidential Petition, Hon. Justice A. Karokora (JSC) stated:
In order to encourage people like the petitioner to come to

court and help in the development of our legal, historical and
Constitutional development in Uganda such people should be
encouraged. Costs should not be awarded by way of penalizing
them so that they should get scared from coming to Court.
174
Similarly, Justice Mulenga (JSC) held:
In the case of Major Gen. D. Tinyefuza Constitutional Appeal

No. 1 of 1997 (SCU) (unreported) this court ordered each party
to bear its costs although the appeal was dismissed. The court’s
reasons for doing so, were that in order to encourage
constitutional litigation parties who go to court should not be
saddled with the opposite party’s costs if they lose. If potential
litigants know that they would face prohibitive costs of
litigation, they would think twice before taking constitutional
issues to court. Such discouragement would have adverse effect
on development of the exercise of the court’s jurisdiction of
judicial-review of the conduct of authorities or individuals,
which are unconstitutional. It would also stifle the growth of
our Constitutional jurisprudence. The culture of
constitutionalism should be nurtured, not stunted in this
Country, which prohibitive litigation costs would do if left to
grow unchecked. I agree with the principles in the decision. In
my view they should equally apply to the instant Petition.
In Advocates for Natural Resources Governance and Development (Supra)

the Constitutional Court referred to Kizza Besigye vs. Yoweri Museveni
(Supra); Prince J Mpuga Rukidi vs. Prince Solomon Iguru Supra and
Attorney General vs. Major Gen. David Tinyefuza (Supra).
The brief facts in Advocates for Natural Resources Governance and

Development (supra) were that a Public Interest Litigation petition was brought
under Article 137 of the Constitution. The petitioner(s) contended that the
respondents’ act of taking over and acquiring land prior to payment of
compensation was in contravention of the right to property enshrined in Article
26 of the Constitution.
The court held inter alia:
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As to costs, a practice has evolved in this and other courts that
parties who seek to enforce in courts of law fundamental
human rights enshrined in the bill of rights in this country’s
Constitution should not seek legal costs. This is a good practice
that was adopted in this very petition.
The rationale for this is that no one should be seen to be

profiting from a matter in which he or she has no interest
beyond that of other members of the public. Secondly, in every
constitutional petition or reference, the Attorney General is a
statutory respondent, representing a Government elected by
the people. Whenever costs are awarded against the Attorney
General they are paid out of public funds. A person who brings
a public interest action would then be requiring the same
public to pay him or her costs. In the event that a public
interest petitioner or litigant is unsuccessful and is condemned
to pay costs, that too would be unfair. One individual would
have to pay costs in a matter that he or she has no interest
beyond that of the other members of the public. This would
create a chilling effect and stifle the enforcement of rights and
the growth of constitutionalism.
The court concluded that where in Public Interest petitions cases, costs are awarded, the
actual amounts taxed and allowed should be nominal in respect of professional fees, the
rest should simply be awarded only in respect of disbursements.
The above cases were analysed by the Supreme Court in the case of Muwanga Kivumbi v
Attorney General where the main issue was whether costs should be awarded in a public
interest litigation.
Held;
Per Lillian Tibatemwa
176
A proper reading of the above cases reveals that the Court re-affirmed the already
established legal principles inherent in Section 27 (2) of the Civil Procedure Act, which
provides:… the costs of any action, cause or other matter or issue shall follow the
event unless the court or judge shall for good reason otherwise order.
The principles which can be deduced from the Section are that:
1. The award of costs is left to the discretion of the court.
2. Costs normally follow the event – the general rule is that a successful party will
be awarded costs.
3. Just as it is in other areas of the law where the court is empowered to make
decisions, the court’s discretion must be exercised judicially.
However, while accepting that the principles inherent in Section 27 apply to Public Interest
Litigation cases, the above authorities emphasized that costs in Public Interest Litigation cases
should only be awarded in rare cases, that a court must balance the need to compensate the
successful litigant on the one hand with the value (s) underlying Public Interest Litigation such
as growth of constitutional jurisprudence which would be stifled if potential litigants know that
there is a possibility of being saddled with costs in the event of the case being dismissed.
In other words, in Public Interest Litigation, a court should exercise its discretion to award costs
infrequently. Furthermore, where costs are awarded in Public Interest Litigation cases, the
award should be nominal.
I therefore do not accept the argument of the respondent that this Court in its earlier decisions
established an absolute rule that a party that seeks to enforce Public Interest Litigation should
never seek to recover legal costs.
The fact that proceedings involve some public interest aspect does not, of itself,
warrant departure from the general rule that costs follow the event.
Even if court found that this was a public interest litigation, it ordered that the appellant
be granted costs in this Court and in the court below.
Kwizera v Attorney General
177
By a majority decision of 4-1, the Justices of the Constitutional Court allowed the petition in part
and ordered “each party to meet its own costs.” The Appellant was aggrieved by the order that
“each party should meet its own costs” because he believed that since he had won the petition,
he was entitled to costs.
Held;
The principles which can be deduced from Section 27 are that:
1. The award of costs is left to the discretion of the court.
2. Costs normally follow the event.
3. The Court may for good reason depart from the general rule and decline to award
cost to a successful party.
There is a dearth of authorities including the case of Iyamulemye David Vs Attorney General,
(supra) to the effect that the law in this area appears well settled. The award of costs is in the
discretion of the Court, and it usually follows the event unless the Court for good reason orders
otherwise.
Just like any other discretion, it must of course, be exercised judicially and not arbitrarily,
otherwise an aggrieved party is free to challenge the court’s decision by way of an appeal.
According to Duhaime’s Law Dictionary,(www.duhaime.org,accessed on 19.12.2016), the

phrase ‘costs follow the event’ means that: “an award of costs will generally flow with the result
of litigation; the successful party being entitled to an order for costs against the unsuccessful
party.”In other words, the general rule is that a successful party will be awarded costs. This was
emphasized by Odoki Ag. JSC in the case of Iyamuleme David vs. AG SCCA NO.4 of 2013.
He heldinter alia that:
While it is trite law that the award of costs is on the discretion of the
Court, the award of costs must follow the event unless the Court, for good
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reasons orders otherwise, according to Section 27 of the Civil Procedure
Act.
Thus in Besigye Kizza vs. Museveni Yoweri Kaguta and Electoral Commission, Presidential
Election Petition No. 1 of 2001 Odoki (CJ) stated:
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 a
successful party costs of litigation must be exercised judicially and for
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 in
exceptional circumstances.
It therefore follows that if a court decides to depart from the general rule, the court is obliged to
give reason for not awarding costs to a successful litigant. It is only then that it would be evident
on record that in reaching its decision, the court has complied with the statutory requirement that
its departure from the general rule has been for good reason
In Constitutional Petition No.14 of 2005, the appellant was successful on 1 out of the 3 grounds
raised in his petition and on the second and third grounds, he was partially successful.
Therefore, the court should have awarded the appellant at least 2/3 of the costs of the petition
unless the court’s departure from the general rule that a successful party is entitled to costs was
for‘good reason’
Court noted it is on record that four out of the five Justices gave no reason for their
departure from the general rule stated that a judicial officer is obliged to give reasons for
declining to award costs to a successful party. court therefore faulted the 4 Justices of the
Constitutional Court for not giving reasons for their departure from general rule that costs
follow the event.
On public interest litigation, Justice Lilian Tibatemwa applied the same

reasoning and authorities as in Muwanga Kivumbi case above holding that
The fact that proceedings involve some public interest aspect does not, of
179
itself, warrant departure from the general rule that costs follow the event.
In Public Interest Litigation, a court should exercise its discretion to award
exorbitant costs infrequently. Thus, where costs are awarded in Public Interest
Litigation cases, the award should be nominal
Mwiru Paul v Hon Igeme Nathan Nabeta
Whether the learned trial judge erred in law and fact in ordering that each party to an election
petition meet its respective costs after dismissing the petition?
Held;
The law is settled that costs in civil litigation follow the event and a successful party is entitled to
costs except for good reason connected with the case. The decision to award or not to award
costs 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.
Section 27 of the Civil Procedure 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 the judge shall for good reason otherwise order.”
In election matters the court determining who should bear the costs of an election is guided by
rule 27 of the Parliamentary Petitions Rules- S.I 141-2 which state as follows:“
All costs of and incidental to the presentation of the petition shall be defrayed by the
parties in such manner and in such proportions as the court may determine.”
Court found that the trial judge gave reasons for her decision. He had stated that petitions are
matters of national or political importance for which court should be hesitant to award costs In
order to succeed on this issue the cross-appellant has to demonstrate that the reasons given for
the exercise of discretion were not based on facts in the case. The ground failed.
In Uganda Transport Co. v Outa (1985) HCB 27, the judge did not award costs to the
appellants for the
reason that counsel did not ask for costs. The court found that costs where in the discretion of the
court wherein the successful party can only be denied costs for a good reason. Court found that
the reason given by the judge was not a “good reason” within the meaning of the rule. That there
was no good reason for denying the applicants costs
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Costs are assessed through a process called ‘taxation’. But before being assessed they must be
awarded by the court i.e. decree must contain an award of costs.
In Rwantare v Rwabutoga (1988-90)HCB 100, the learned judge gave no reason as to why
costs where not awarded to the successful party. Court found that costs of any action follow the
event unless the judge for good reason otherwise orders. That the jurisdiction to tax a bill of
costs where none were awarded.
Taxing master-registrar (H.C). Magistrate (Mag court)

Parties appear before tax master to present an itemized list of the costs incurred. If registrar
satified that those are reasonable, passes as present. If unreasonable-taxes off (recheees) the
amount leaving only those items that are reasonable. All in the presence of opposite party. If all
agree, court goes on to certify them as costs of suit. If any item is not agreed on by any
party/challenged before (mag as case) who may proceed to reduce the amounts claimed or to
refuse to award such amounts.
Court in Evaristo Nyanzi v S.M Xavier (1983) HCB 52 found that the taxing master sits as a
court before which the parties lead evidence to prove or disprove costs and he has to make his
ruling or order.
The taxation proceedings are actually civil proceedings. Under O.21, r.8 it is provided that a
decree or order shall not state the amount of costs which after they have been taxed or
ascertained shall be stated in a separate certificate signed by the registrar. This certificate is
called a certificate of costs. Any party dissatisfied with the decision of the registrar in taxation
may appeal from such decision to the judge in the High court under the Advocates Act
CONSEQUENCES OF JUDGMENTS AND RES JUDICATA
S.7, CPA: No court shall try any suit on issues in which the mater directly and substantially in
issue has been directly and substantially in issue in a former suit between same parties or
between the same parties under whom they or any of them claim, litigating under the same
matter in a court competent to try such a subsequent suit or the suit in which such issue has been
subsequently raised and has been heard and finally decided by such court.
Held;
The law does not provide for a waiver of res-judicata, which is a statutory provision set out in
mandatory terms under Section 7 of the Civil Procedure Act. It is a law that prohibits courts
from trying matters that had already been finally determined.
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Res judicata is a plea of jurisdiction, in that Section 7 of Civil Procedure Act (supra) bars 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.
The learned judge therefore erred when he held that a plea of res- judicata had been waived by
the defendant at the trial before the Magistrate’s Court.
Court agreed with the position stated by the Court of Appeal of Uganda in Ponsiano Semakula
versus Susane Magala & Others, 1993 KALR P.213 where it had this to say on the doctrine of
res-judicata.
“The doctrine of res-judicata, embodied in S.7 of the Civil Procedure Act, is a

fundamental doctrine of all courts that there must be an end of litigation. The spirit of the
doctrine succinctly expressed in the well-know maxim: ‘nemo debt bis vexari pro una et
eada 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 litigation about it
should be concluded forever between the parties. The test whether or not a suit is barred
by res-judicata appears to be that the plaintiff in the second suit trying to bring before
the court in another way and in the form of a new cause of action, a transaction which he
has already put before a court of competent jurisdiction in earlier proceedings 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”.
Regarding judgments court held that a judgment must be signed and dated by a judge or
Magistrate who wrote it at the time of pronouncing it. A judgment that is not signed and dated in
accordance with Order 21 rule 3(1) of the Civil Procedure Rules is no judgment at all and is
therefore invalid and that neither oral evidence of the Judicial Officer who wrote it nor
certification could validate such an unsigned judgment.
Having found that there was no valid judgment in this case. Court held that the plea Res-judicata
could therefore not have been sustained in absence of a valid judgment, or decree or pleadings
and proceedings of the first Court.
Further that since the action was based on trespass, in cases of continuing trespass res-judicata
does not apply. Even limitation would not bar an action based on continued trespass.
Hon Anifa Bangirana Kawooya v Attorney General and NCHE.
The brief facts of this petition are that the National Council Council for Higher Education issued
a certificate of Equivalence to the petitioner in 2005. That in 2010 the legality of the said
certificate was unsuccessfully contested in the High. That after the decision of the high court, the
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2nd respondent recalled the petitioner’s said certificate and cancelled it. The petitioner therefore,
challenged the decision of the 2nd respondent hence this petition.
Whether the matter of the petitioner’s academic qualifications upon which the Certificate of
Equivalence was recalled is resjudicata
Held;
The meaning of resjudicta is also expounded in BLACK’s LAW DICTIONARY EIGHT

EDITION as follows:-
“1. An issue that has been definitely settled by judicial decision.
2. An affirmative defence barring the same parties from litigating a second law suit on the
same claim or any other claim arising from the same transaction or a series of transactions
and that could have been – but was not – raised in the first suit.
The author of the dictionary explains that resjudicata has three essential elements:-
i. An earlier decision on the issue.

ii. Final judgment on the merits
iii. The involvement of the same parties, or parties in privity with the original parties.
Court concluded that the second respondent does not have a 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. The 1st respondent
had a similar right but did not seek to exercise it. The matter is now res judicta and the
respondent cannot now resurrect it.
Kamunyne & Others v The Pioneer General Assurance Ltd [1971] EA 263
The respondent was the mortgagee of land owned by the appellants. The land was let partly to
African and partly to non-African tenants. The respondent collected rents from non-African
tenants, but it could not be in possession of land occupied by African tenants. In an action in the
High Court the appellants claimed that the mortgage was time-barred and that the mortgagee was
never in possession of the mortgaged land. The High Court held that the mortgage was not time
barred. An appeal from this decision was dismissed. The appellants filed a further action
claiming substantially the same relief and the respondent contended that the claim was res
judicata. The appellants claimed that the first action was solely concerned with the land occupied
by non-Africans and that the mortgage was divisible between the two categories of land. The
High Court dismissed the case and the appellants appealed.
Held;
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Law, Ag. V-P. considered the S.7 and stated,
‘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 the court, in another way and in the form of a new cause of
action, a transaction which he has already put before a 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 brought forward at the time The subject
matter in the subsequent suit must be covered by the previous suit,
for res judicata to apply.
On the facts, the defences raised were substantially the same as in the earlier case and the claim
was res judicata against the appellants.
Saleh Bin Kombo Bin Faki v Administrator General, Zanzibar [1957] 1 EA 191
The administrator general was a party to two suits under different capacity. Whether issue
decided in first case constitutes res judicata in the second?
Held;
Tthe defendant’s contention as to res judicata must fail as although in each of the two cases the
(plaintiff as) Administrator General was a party, he was not in both cases “litigating under the
same title” for the purpose of S. 7of the Civil Procedure Decree: in the former case he sued as
administrator of the estate of the late Hassanbhai Dadabhai and in the present case he had been
sued as administrator of the late Kassamali Alibhai.
Semakula vs Magala: (1979) HCB 90
Held; That the plea of re-judicata is to be found in S.7 of the CPA. One this plea is successfully
raised the suit must be dismissed. The court was right to hear arguments on the plea of res-
judicata and dispose of the preliminary point of law before hearing the evidence on the merits of
the case.
Test: That 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 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 and which has been adjudicated upon. If this is answered
affirmatively, the plea of res-judicata will then not only apply to all issues upon which the first
court was called upon to adjudicate but also to every issue which properly belonged to the
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subject of litigation and which might have been raised at the time through the exercise of due
diligence by the parties.
Since the issue of ownership between the same parties had been finally determined, it was the
same issue for determination and trial judge rightly dismissed the second suit on the argument of
res-judicata.
Re Rwenzigye 1976 HCB 173
There was a dispute that the trial court concerning the encroachment on the plaintiff’s land by
the defendant. Judgment was given for the plaintiff. The defendant objected to the hearing of the
suit in the instant case on the ground that the case was res-judicata. The objection was overruled
by the trial magistrate. The defendant appealed to the High Court.
Held: The Chief Magistrate quite rightly held in his ruling that the alleged acts of trespass were
fresh ones. So whatever the same land was trespassed on earlier, it was immaterial. Each new act
of alleged trespass gave rise to new cause of action and in this case the question of res-judicata
did not apply.
Lubisya v. Ernesti Wanyoni: Held: That court severed the part that is res-judicata in respect of
one party and proceeded with the rest.
Nakilidde v. Hotel International: For res-judicata to apply, the matter ought to have been
determined on its merits. It must be decided finally and not merely dismissed.
NB: If the court dismisses the case that is not res-judicata but where the dismissal is due to
failure to disclose a cause of action, no new/fresh suit can be brought.
Nabanoba v. Sekamwagi: The suit had been tried by a court that had no jurisdiction [LC court].
Held: That the suit was not res-judicata since the original court had no jurisdiction. The case
must be determined on its own merits.
Isaac Bobu busulwa vs Kasande: A dismissal of a suit on a preliminary point not based on the
merits of the case does not bar a subsequent suit on the same fact and issues and between the
same parties.
Laxmidas Turin v. Sister Rose Muyanza: Res – judicata can only apply to a person where
judgment has been given.
Julian Galton Fenzi V Nabbosa Natasha Marie1
1
(MISC.CAUSE No 6 OF 2012) [2013] UGHCFD 7 (6 September 2013)
185
The grounds of the application are that the applicant and the respondent got divorced on 10th
May 2011 vide Divorce Cause 9 of 2010 where the applicant was granted custody of the two
children in the marriage aged 17 years and 11 years respectively and that since then, the
respondent being mother of the children has failed to support them financially notwithstanding
the fact that she was granted all the property which is valued at approximately US $ 1 million
and that it is just and equitable that the application for maintenance be granted as it is in the best
interest of the children. It was held that the matter was res judicata and should have been brought
under the divorce proceedings.
Court relied on Posiyano Semakula Vs Susane Magala [1979] HCB 90 where the Court of
Appeal held inter alia that:-
“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 another was in the form of a new cause of
action a transaction which has already been presented before Court of competent jurisdiction in
earlier proceedings and which has been adjudicated upon. If this is answered affirmatively the
plea of res judicata will then not only apply to all issues upon which the first court was called
upon to adjudicate but also to every issue which properly belonged to the subject of litigation
and which might have been raised at the time through the exercise of due diligence by the
parties”.
In the instant case, the court held as follows;
The import of the above decision is that the applicant should have exercised all due
diligence to litigate on all issues which properly belonged to the subject of litigation – in
this case divorce – and sought for maintenance of the children whose custody was
granted to him in the consent judgment. Since the applicant chose not to seek for
maintenance in the divorce proceedings or it has come as an afterthought, as it seeks to
be, then indeed he is barred by res judicata to resurrect the matter now.
In the case of Isaac Bab Busulwa Vs Ibrahim Kakinde, HCCS No. 1494 of 1977 Court held;
“A dismissal of a suit on a preliminary point not based on the merits of the case does not
bar a subsequent suit on the same facts and issues and between the same parties”
The above decision followed an earlier decision in Keharchand Vs Jan Mohammed (1919-21)
EACA 65 where it was held:-
“Where a suit has been dismissed on a preliminary objection the plaintiff has not had an
opportunity of being heard on the merits and is therefore not res judicata”
186
EXECUTION AND STAY OF EXECUTION
An ordinary judgment (on notice) is given after a full trial in which all parties have been heard. It
is provided for under O.21, r.1. [See also S.2 of the CPA which defines “judgment”] S.2 of the
CPA similarly defines a decree and a decree holder. A decree is extracted from a judgment.
O.22, execution of decrees and orders. An order comes from a ruling of the court and rulings are
made in interlocutory applications. Judgment comes at the end of the hearing, from where you
execute a decree. How do you determine the various modes of execution.
Enforcement of judgment may be by……………..(modes of execution) after attachment, they
sale and then imprisonment not exceeding 6 months, its not a punishment and it does not change
with regard to the amount, so the court tempts you, its contempt of court, after 6 months and you
have still not paid, then the court can send you back.
See Kiggundu’s case, he was convicted for 6 months but he still did not pay. (but does the debt
extinguish? You ask to be made bankrupt.)
Execution is the process of realizing the benefits of the judgment. Section 38CPA prescribes the
powers of court to extract execution and it states briefly that upon application of a decree holder,
the court may order execution of the decree in the following ways,
a. Delivery of any property specifically a decree
b. Attachment and sale
c. Attachment of debt
d. Arrest and detention in prison.
e. By appointing a receiver
f. In such other manner as the later of the relief granted may require.
g. The nature of the defendant, S.14 GPA (Osotraco v A.G )
S.14 Government Procedure Act prohibits some form of execution against government, you
cannot attach government’s property nor can you evict government R.15GPR. It’s been removed
by the constitution in that it’s inconsistent with the constitution and therefore void.
i). The nature of the relief that you are seeking. What assets does this person have to be able to
satisfy you, if the person is a limited liability company, you cannot imprison it, it’s not a natural
person. O.22r.8. see O.22 r.7, 8, 9, 10- provide for applications for executions in different
situations r.8 states if it’s a money judgment, you can apply in court there and then for arrest. r.8
(2) provides for a written application and the format of application is appendix D form 5. (How
do you want to execute).
S.38 Attachment and sale

S.44 CPA prescribes the property available for attachment and sale in execution of a decree and
its very generous. It talks about all saleable, moveable and immoveable property belonging to the
judgment debtor. He is one to whom the decree has been passed.
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The section talks about money, land, buildings, promissory notes, bonds, debts, shares etc. the
section excludes the necessary wearing apparel (clothes), cooking vessels, beds and beddings of
the judgment debtor of his wife and children and such ornaments in accordance with any usage
that cannot be departed with by any woman. Section 45 mentions the seizer of property, it talks
about, that it must be done between sunrise and sunset and the other doors should not be open
and provides for some protection of women who are not allowed to appear in public. You are not
allowed to execute at night.
Semakula v Musoke, the warrant was for the attachment of moveable property. The bailiff hired
a 2 and half track, 30 potters and 2 armed policemen, they had been sent to attach property, they
took off the roof, removed all the windows and doors leaving only the mad and wattle walls, and
the question was. Was that an attachment of moveable property?
Justice Allen said that moveable property would include furniture, carpets, curtains, radio, T.V
but it would not include parts of the fabric of the house itself, iron sheets forming the roof, the
window frames and doors were part of the house itself and they could only be attached if the
whole house was attached as immoveable property. Attachment of immoveable property. How
do you attach immoveable property? R.15, O.22. you take the warrant and place it on the house
and take a warrant to the land office and it would cancel the fresh one and it would show an
order of court.
TransAfrica Bank v N.S.S.F when building the worker’s house, transafrica sued…………
After property has been attached, how do you sale it. O.22 r.62,63,64.
The court bailiff is required to advertise the property for sale. In the case of immoveable, it must
run for 30 days and in cases of moveable, it must run for 15 days. It must be advertised in the
newspapers.
Attachment of debt. Garnishee proceedings.
How do you attach a debt? O.20

O.20r.1 provides for the proceedings for application for the garnishee order. It provides for the
format of the order. r.2 gives the effect of the garnishee order and it says it shall bind such debts
in his hands. R.3 and r.4 talk about the order being made absolute.
If the garnishee, the person holding the debt does not appear execution must be directly issued
against that person as if he was the judgment debtor.
Execution by way of arrest and detention civil debtor’s prison.
This can only apply to natural persons.

S.40-43, O.22 r.34, 35, 36, essentially a judgment debtor may be arrested in execution of a
decree and he can be detained for a period up to 6 months. This detention is at the cost of the
judgment creditor and O.22 r.36 provides for a subsistence allowance and it says that it shall be
as court considers sufficient with respect to the class of which the judgment debtor belongs.
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Abdul Aziz v Rajab it states that you must issue a notice to show cause before a warrant of
arrest is issued.
Objector.
Stay of execution
………………………………………………………………………………………………………
.
.and handed over to the liquidator and there can be no attachment against the company in
liquidation. You cannot attach goods of a company in liquidation.
Objector proceedings. O.22 r.55
The ground for objection is that the property that has been attached is not liable for attachment.
To attach property, you attach that of the judgment debtor (not of any other person) named in the
decree.
O.22 r.55 (2) provides, postponing a sale until the objector application is heard.
What is the scope of the investigation under objector proceedings r.57?
The elements of r.57

1. That it was not in his possession (judgment debtor)
2. If it was in his possession, it was in trust for somebody.
Patel v Patel (1958)E.A. see ‘Chitaley and Rao-(c.p Book)

‘the question to be decided is whether on the date of attachment the judgment 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 his judgment
debtor. The sole question to be investigated is that one of possession. Questions of legal right and
title are not relevant except in so far as they affect the decision as to whether the possession is on
account of or in trust for the judgment debtor or some other person.
S.A v N.S.S.F supreme court decision No 1/99. It also comes down to the same question.
Uganda Mineral water v Iran

It was held that the scope of investigation to be carried out by the court under O.22 r.55, 56, 57
says it’s not for determining ownership of the property being threatened with attachment. At the
end of the objector proceedings, one of the parties must sue in order to determine title to the
property, see r.60, an order made under the rule is only provisional and a suit may be brought to
claim the property notwithstanding the order. The court must answer the question whether on the
date of attachment the judgment debtor/ the objector was in possession of the property if the
court finds that it was the judgment debtor the inquiry will go on further. Secondly, the court
must determine whether the objector held the property on his or her own account or in trust of
the judgment debtor or some other person. A delayed objector proceeding, that itself is known
for refusing it. r.55 (1) provided that no such investigation shall be made……if you left the car at
189
the neighbors, went for holiday came back and he told you that it was attached, what would be
your remedy. See r.71, s.66-not exceeding 2000/=
Stay of execution. O.22 r.23, r.26. O.43r.4 and 7
All that is being done is that, the judgment debtor is asking the court to stop the execution
process to allow him to take another step and these steps may be to appeal the judgment being
subject to execution, set aside revision, and judgment. It’s not enough to refuse to pay.r.23 the
court to which the decree has been sent for execution (transferred decree) but it also results on
the stay of execution on the grounds given in that rule.r.26, where a suit is pending in any court
against an order of a decree that rule has been interpreted to mean e.g where A is the decree
holder against B but in the same court B has a claim against A)
S.98 gives the state powers …………………………………………………………………
O.43 r.4(3) you should satisfy those conditions and they as follows
- A substantial loss may result.
- That the application has been made without unreasonable delay.
- That security has been given for the due performance of such decree as may ultimately be
binding
- upon the applicant and these are the 3 criteria for stay of execution.
-
Kampala Bottlers v Uganda Bottlers, Justice Potter refused to give a stay of execution of his
own judgment and his reason was that he was the one who had written the judgment. Likelihood
of success of the appeal is not a ground for stay of execution.
b.) That the application has been made without unreasonable delay.
In practice the application is made orally at the time of passing judgment and the court may grant
an interim stay and ask the applicant to file a formal application.
Lawrence musitwa kyazze v Eunice Busingye.
Should the high court refuse the stay of execution, you go to the next court and ask in that court
for stay of execution. It is not an appeal but rather an application. They have a similar rule to
s.98. on the question of substantial loss, the court has considered the likelihood of recovering the
money from the plaintiff and has held that if the money can be recovered then no stay can be
ordered. In other words if A is somebody of substance (judgment creditor, you go get the money
from him, then court says it will not…….stay o execution
Herbert Ntabgoba Jeremiah v. New Vision
DFCU v Russejere, they followed a decision from Ghana, that if a stay is to be granted security
for the performance for the decree should be provided. If a stay is to be refused even the
judgment creditor should provide security for the refund of the money.
COLLECTIVE AND POST JUDGMENT REMEDIES
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The Slip rule:
 As a general rule of law once a court has pronounced its judgment or passed a decree or
order, such court is functus officio and cannot alter, amend or otherwise vary its judgment
decree or order unless in accordance with the law
In Orient Bank vs Frederick Zaabwe & Anor, held; that as a general rule “the decision of
this court on any issue of fact or law is final, so that the unsuccessful party cannot apply for
its reversal.
 The law however recognizes the fact that administration of justice entails the making of
mistakes whether clerical or otherwise and therefore provides for an avenue through
which such mistakes or errors can be rectified and one such avenues is the slip rule which
constitutes an exception to the aforementioned general rule [functus officio]
 The slip rule is provided for in S.99 of the CPA for High Court and Magistrate Courts.
Rule 36[1][2] read together with rule rule 2[2] of the Court of Appeal rules and Rule 35
of the Supreme Court rules read together with rule 2[2] the aforementioned provisions
confer a discretion upon the respective courts in appropriate circumstances to vary or
otherwise amend judgment decrees or orders where doing so is in the interest of justice
In order for the slip rule to be successfully invoked the following principles may have to be
satisfied:
1. There must be a clerical or arithmetical mistake or error apparent of the face of the
judgment decree or order that requires rectification by the court
In Kwizera Eddie v Attorney General, where court ordered each party to bear its costs, it was
held that there was no slip as the court had exercised its discretion and made a deliberate
decision based on the partial outcome of the petition.
In David Muhenda v Humphrey Mirembe, court held that the remedy did 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.
2. The error or mistake or omission should be one which after rectification will give
meaning to the intention of the court as reflected in its judgment [the correction or
rectification effectuates the intention of the court]
3. The court may also invoke the slip power where there is an omission which if it had been
drawn to its attention such court is left in no doubt as to the order it would have made
191
As for the applicability of the slip rule, the former Court of Appeal for East Africa set out the
principles applicable in the case of Karsandas Raniga vs Jivraj & Ors (1965) EA 700 as
follows:
“(iii) ‘slip orders’ may be made to rectify omissions resulting from the failure of counsel
to make some particular application.
(iv) a slip order will only be made where the court is fully satisfied that it is giving effect
to the intention of the court at the time when judgment was given, or 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.”
In that case a decree for possession, arrears of rent and mesne profits was passed against
the Appellant by the then Supreme Court of Kenya. Before lodging the record of appeal,
the Appellant had successfully applied to the Court of Appeal for East Africa for a stay of
execution pending the hearing of the appeal. On the terms and under that order, the
Appellant made certain payments to the Respondent. The appeal was subsequently heard
and allowed but counsel for the Appellant failed to apply to vacate the order for stay of
execution and for the refund of the moneys paid under that order. Counsel for the
Appellant applied for amendment of the order so as to provide for refund of moneys that
had been paid by the Appellant.
The court was satisfied that if the facts had been before the court when the judgment was
given on appeal, the court would on application, or indeed on its own motion, have made
the order for refund sought, which was consequential to the decision. It therefore ordered
accordingly.
Sir Charles Newbold, P. in Lakhamishi Brothers Ltd. - vs - R. Raja and Sous (1966) EA 313
at p. 314 stated that ‘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.’ ”
This explanation was approved in Orient Bank vs Frederick Zaabwe & Anor,
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Where the Court stated the scope of the application of the ‘slip rule’ when it said the following:
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 was satisfied beyond doubt, as to the
order which it would have made had the matter been brought to its attention.”
Fang Min v Dr. Kaijuka
Presenting the applicant’s case, Mr. Byaruhanga submitted that this application is brought under
the slip rule (rule 35 (1) of the Rules of this Court) seeking that this court’s judgment dated 20th
January 2009, in Civil Appeal No. 23 of 2007, be recalled and corrected. He pointed out that the
intention of this court at the time of the judgment was to restore the judgment and orders of the
High Court. He argued that that being so, the alternative order made by this court that “if the
specific performance cannot be performed, then the respondent (now applicant) is to pay the
appellant (respondent), by way of damages, the market value of the suit house” was a slip
Court relied on the authorities in Lakhamishi Brothers and Orient Bank’ and then;
held;
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.
193
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.
 The slip rule cannot be invoked where the alleged mistake or error is one of law or arises
out of misinterpretation of law by the court but the appropriate remedy is to appeal.
In Ahmed Kawooya Kaugu vs Bangu Aggrey Fred CACA NO. 03 OF 2007 the applicant
filed an application seeking an order that the Court of Appeal correct its judgment under the slip
rule by citing what the applicant called the right laws. The court held that:
“Rule 36(1) & (2) of the CAR entitles the court to correct its judgment where there are found
clerical or mathematical mistakes or accidental slips. The error or omission must be an error
in expressing the manifest intention of the court. Court cannot correct a mistake of its own in
law or otherwise even where apparent on the face of the record. Under the slip rule court
cannot correct a mistake arising from its own misunderstanding of the law. The present
application deals with what is alleged to be the misunderstanding by court of the law and its
alleged misapplication or misconstruction. The application is not tenable under the slip rule.”
The Court further stated that:
“We would point out that the judgment /order on record correctly manifests our intention. We
would not have ruled otherwise. Should any court be persuaded to correct its
misunderstanding of the law or applying old laws, it would open a very wide door to chaos.”
 The slip rule cannot be invoked as an ingenious attempt to argue an appeal indirectly
before the same court
Lakhamishi Brothers Ltd. - vs - R. Raja and Sous (1966) EA 313
The applicants, who were respondents in the appeal, applied to recall, review and set aside a
judgment of the court on grounds which made it quite clear that the review asked for would
result in a new judgment contrary to the intention of the court in the original judgment. A
preliminary objection was taken on the ground that the court had no jurisdiction to entertain the
application.
194
Held –
(i) the court had an inherent jurisdiction to recall its judgments in order to give effect to its
manifest intention or to what clearly would have been the intention of the court had some matter
not been inadvertently omitted, but it would not sit on appeal against its own judgment in the
same proceedings;
( ii) the application should be struck out on the ground that the Court had no jurisdiction to
entertain it.
Newbold;
These are the circumstances in which this court will exercise its jurisdiction and recall its
judgment, that is, only in order to give effect to its intention or 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 in judgment on its
own previous judgment. There is a principle which is of the very 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.
Kwizera Eddie v Attorney General
By a majority decision of 4-1, the Justices of the Constitutional Court allowed the petition in
part and ordered “each party to meet its own costs.” The Appellant was aggrieved by the order
that “each party should meet its own costs” because he believed that since he had won the
petition, he was entitled to costs. As a result, he filed Constitutional Application No. 18 of
2006 under Rule 36 of the Court of Appeal Rules, seeking an order from the same Court to
correct an error or mistake or slip in its judgment using the “slip rule” and award him the costs
of the petition. The learned Justices of the Constitutional Court (Mukasa Kikonyogo, DJC,
Okello, Mpagi- Bahigeine, Kitumba and Byamugisha JJ.A) who heard the application held that
the “slip rule” did not apply to the circumstances of the case since the Court had deliberately
exercised its discretion under Section 27 of the Civil Procedure Act in making the order on
costs. The Court advised the Appellant that the solution lay in an appeal and proceeded to
dismiss the application with costs to the Respondent. The appellant then appealed against this
decision to the Supreme Court.
Held;
195
Obviously, the grounds set forth in the said application and the arguments put forward by the
Appellant were challenging the decision of the Constitutional Court on costs. In other words,
the Court was being asked to sit on appeal in its own judgment and actually change the original
order that “each party should bear his own costs”, to the opposite order awarding the costs to
the Appellant. This would tantamount to asking the Court to alter its decision which could only
be done on an appeal and not under the “slip rule” because the Constitutional Court was at that
point functus officio.
The Court was right to find that the application was clearly and designedly an appeal
camouflaged as an application for a slip order. Appeal dismissed.
 The procedure is by notice of motion with a valid affidavit although the rules allow the
court to move itself in circumstances that are appropriate.
In Orient Bank Ltd v AVI Enterprises Ltd, it was held that Section 99 of the Civil Procedure
Act permits the court on its own motion or on the application of any of the parties to correct
clerical or mathematical mistakes in judgments, decrees or orders or errors arising from any
accidental slip or omission.
The slip rule is part of the problem question in exam
THE LAW THAT RELATES TO REVIEW OF DECREES AND ORDERS
 The law relating to review of decrees and orders is set in S.82 of the CPA and Order 46
of the CPR. This is however not judicial review because these are decrees or orders of
courts of law.
 Review may be invoked by any person who considers him or herself aggrieved by a
decree or order. The person must be legally aggrieved in the sense that the decree or
order affects the applicant’s legal or equitable interest in the subject matter of the suit.
Busoga Growers Corporative Union Ltd v Nsamba
 It follows therefore that even a third party who was not party to the decree or order but
who is legally affected by the said decree or order may equally apply for review.
An aggrieved party was defined by Justice Karokora as he then was in Mohammed Allibhaivs
W.E. Bukenya and Another, C.A 56 of 1996, citing, Re Nakivubo Chemists (U) Ltd; In the
196
matter of the Companies Act (1979) HCB 12; to include any party who has been deprived of his
property. He also cited the case of Kawdu vs Bever Ginning Co. Ltd, Akot and Others 1929 AIR
Nagpur 185; noted that, whereas court has inherent powers to review an order passed where it
affected a third party; it must be a person who has suffered a legal grievance and the principle
applies depending upon the peculiar circumstances of each case.
In the same case, Justice Odoki observed that it is well established that while a 3rd party may
apply for review under the law, the party must establish that he is an aggrieved person.
George William Katerega v Commissioner Land Registration
Held; While appreciating that only a party to a suit has a right of appeal under S. 67 CPA, it is
not correct to state that only a party to the suit may apply for a review of judgment. O.46 r.(I)
CPR, provides that any person considering himself or herself aggrieved by decree or order from
which an appeal is allowed but from which no appeal has been preferred, or from which no
appeal is allowed may apply for a review of the judgment to the court that passed the decree or
made the order. [See also: Section 83 CPA]. The expression “any aggrieved person” has been
interpreted to mean such a person who is aggrieved who may be a party to the suit or any third
party with interest in the subject matter of the suit. See: Adonia v. Mutekanga [1970] EA 429.
Furthermore, a third party filing for review must be prepared to demonstrate that he or she has
suffered legal grievance. See: Mohamed Albhai v. E.E Bukenya, S.C.Civ.Appeal No. 56 of
1996.
Gordon Sentiba and ors V IGG;
Per Kitumba; The complaint raised in ground 3 is that the respondent has no locus standi, to
apply for review of a judgement that is between private citizens and the government. I appreciate
the submissions by counsel for the respondent that according to Order 46 Rule 1 and 2 and
section 82 of the Civil Procedure Act, any aggrieved party may move court to review a
judgment. That may be done by an aggrieved party who may not necessarily be a party to the
proceedings
Where do you apply [forum]
 The wording of S.92 of CPA and order 46 of the CPR clearly confers jurisdiction to
exercise powers of review on the court that passed the decree or that made the order.
197
Order 46; rules 2 and 4.
“2. To whom application for review may be made.
An application for review of a decree or order of a court, upon some ground

other than the discovery of the new and important matter or evidence as is
referred to in rule 1 of this Order, or the existence of a clerical or arithmetical
mistake or error apparent on the face of the decree, shall be made only to the
judge who passed the decree or made the order sought to be reviewed.”
4. Application for review to be to the same judge or judges.
Where the judge or judges, or any one of the judges who passed the decree or made the
order, a review of which is applied for, continues or continue attached to the court at the
time when the application for review is presented, and is not or are not precluded by
absence or other cause for a period of six months next after the application from
considering the decree or order to which the application refers, the judge or judges or any
of them shall hear the application, and no other judge or judges of the court shall hear the
application
Margaret Senkuule V Musa Nakirya
Nakagwa v dominico kigundu J. odoki
 However, this does not necessarily mean that the every application for review must be
before the same judge that passed the decision. The scope of Order 46 rules 2 and 4 was
interpreted in the case of
Attorney General and Anor v Henry Kamoga.
that the learned Justice of Appeal misconstrued these rules to mean that every application for
review has to be made to the judge who passed the decree sought to be reviewed. With respect,
that is not correct. Rule 2 envisages two categories of applications for review but provides for
only one category, namely “applications upon some ground other than [the grounds listed in the
rule]”, to be made to the judge who passed the decree or made the order sought to be reviewed. It
does not require the other category, namely “applications upon the ground of discovery of new
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and important matter or evidence as referred to in rule 1 of the same Order, or of the existence
of a clerical or arithmetical mistake or error apparent on the face of the decree”, to be made to
the judge who passed the decree or made the order sought to be reviewed. It follows that an
application of that category may be made to any other judge. Obviously, this is because, for
purposes of evaluating such new matter or evidence and/or correcting such clerical or
arithmetical mistake, a judge who did not pass the decree or make the order is as equipped to do
the necessary evaluation or correction as the judge who passed the decree or made the order. On
the other hand, the essence of rule 4 is to prohibit a judge who did not pass the decree or make
the order sought to be reviewed from entertaining the application for reviewing it as long as the
one who did is available to hear the application within six months after its presentation. To my
understanding, this prohibition relates to only the first category of applications, since any other
interpretation would render the two rules inconsistent with each other.
 Where the decree or order is one that was entered by the registrar of the High court under
O.50 of the CPR, the appropriate forum is an application before a judge of the High
court. A registrar does not have jurisdiction to review or otherwise set aside decrees or
orders passed or entered by him or her
Read
O.50 and Practice Direction No 1 of 2002
The issue was whether a trial judge had power to review a consent judgement entered by the
registrar?
Held;
That review jurisdiction is applicable to consent judgments.
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
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the High Court, (including those entered by the registrar) is not among the powers delegated to
the registrar. In the circumstances, the prohibition that an application for review should be to the
same judge or judges who issued the decree under rule 4 was not applicable since the registrar
who passed the decree was not empowered to review it.
The Supreme Court disagreed with the Court of Appeal, and held that by entertaining the
application for review in the instant case the trial judge did not breach any rule.
The Circumstances under which review is invoked
1. Under both S.82 and O.46 an application for review may be made where the applicant is
aggrieved with the decree or order
a. Where there is a right of appeal from the decree or order but no appeal has been preferred
b. Where there is no right of appeal from the decree or order
Mohamed Albhai v. E.E Bukenya, S.C.Civ.Appeal No. 56 of 1996.

Held; Review can be sought where-
(a) 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
Katwiremu Yorokamu Engineer Vs. Mushemeza Elija & others
Held:
The applicant's application for review does not fit under O.42 r 1 (1) (a). This sub-rule provides
that in order for a matter to be reviewable there under, the order must be one from which appeal
is allowed but from which no appeal has been preferred. In the instant case, as the Court of
Appeal had already held, no appeal against interlocutory orders of the High Court was allowed
by the Court of Appeal. Therefore, this application for review under O.42 rr1 (1)(a) under which
this application was filed, was not allowed.
 Review is more appropriate under the second circumstance where the decree or order is
by consent of the parties S.67[2] of the CPA.
Wasike v Wamboko [1976–1985] 1 EA 625
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Held; It is clear from section 67(2) of the Civil Procedure Act that no appeal can lie from a
consent judgment. The proper course for the appellant to take is to set aside the consent
judgment either by way of review by the High Court, or by some process in that Court.
Grounds for review.
 S. 82 does not specify the grounds upon which that application would be made.
 S.82 confers unlimited discretion upon the court to review or otherwise vary its decree or
order without restriction to any grounds. However O.46 expounds on S. 82 and sets out
grounds upon which an application for review may be found [though in case of a consent
the grounds invoked are those that vitiate a valid contract .
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.
 These grounds are;
i. The discovery of new and important matters of evidence which after due diligence
was not in the knowledge of applicant…
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
Mohamed Albhai v. E.E Bukenya, S.C.Civ.Appeal No. 56 of 1996.

Held; On the wording of this rule the grounds upon which a review may be sought by an
aggrieved person are:
(a) discovery of new and important evidence which was not within his knowledge and could,
therefore, not be produced by him, or
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(b) Some mistake or error apparent on the face of the record, or
(c) any other sufficient reason.
1. Applicant may file the application on the ground that there is a new and important matter
of evidence that was not drawn to the attention of court at the time he passed the decree
or order and that could not even be ascertained even with due diligence.
Joyce Kusulakweguya v Haider Somani
Court allowed an application for review on finding that there has been the discovery of a new
matter or evidence in this case, that is the court did not have evidence that Block 208, Plot
1098 was part of a public highway road! Surely the Applicant could not have been in
possession of a public highway with her buildings on it.
Touring Cars (K) Ltd v Munkanji [2000] 1 EA 261
Held; Where a judge finds that new and important evidence has been produced, he is under a
duty to consider whether this evidence could not have been discovered after the exercise of due
diligence by the party seeking to produce it. In the circumstances of the case, and if this ground
was to be considered, the new evidence was not of a kind that Munkanji could not have
discovered during the hearing of the suit.
2. Where there is an error or mistake apparent on the face of the record in other words it
should not be an error of law which would otherwise be a ground of appeal. This error
should not relate to the reasoning of the judicial officer.
Edison Kanyabwera v Pastori Tumwebaze
The basis of the application for review was that there was some mistake or error apparent
on the face of the record and that error was dismissing the application in absence of
affidavit of service as proof that the defendant or his counsel had been served with the
relevant hearing notice.
Held;
That in order that an error may be a ground for review, it must be one apparent on the
face of the record, i.e. an evident error which does not require any extraneous matter to
show its incorrectness. It must be an error so manifest and clear that no court would
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permit such an error to remain on the record. The "error" may be one of fact, but it is not
limited to matters of fact, and includes also error of law.
In the instant case, the absence from record of an affidavit of service on the defendant or
his counsel was an error or mistake on the face of the record justifying a review of the
trial judge's refusal to set aside the ex parte judgment against the defendant.
Kalokola Kaloli v Nduga Robert
Held;
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 Pastori Tumwebaze 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, a 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…………..”
Joyce Kusulakweguya v Haider Somani
Held;
That a ground which sought to review an “erroneous view of evidence or the law” was not a
good ground for review though it may be a good ground for appeal.
The correct intention and test for review was brought out in the case of Nakabugo V AG [1967]
EA 60 where Sir Udo Udoma (Chief Justice as he then was) held at 62 – 63
“…if the order was ultra vires… that should be a good ground to take this matter to the
Court of Appeal; as it is doubtful whether this court would be competent to sit as a Court
of Appeal on its own order and decree. It is also doubtful whether the provisions of 042 r
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1 (now 046 r 1) were ever intended to deal with a matter where a court had made an
order which is ultra vires its power.
It seems to me that provisions of the order aforesaid would apply only 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…”
Court agreed with the reasoning of The Lord Chief Justice (as he then was) as a review must
relate to the discovery of a new matter or evidence and not a challenge such as ultra vires to a
matter or evidence already on record. Court added that a review at the end of the day 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.
Olula & 31 Ors v Attorney General HCT-02-CV-MA-0068/2015
Held; It was held in the case of F.X Mubuuke v UEB HCMA No.98/2005 unreported “ That
for a review to succeed on the basis of error on the face of the record, the error must be so
manifest and clear that no court would permit such an error to remain o the record. A wrong
application of the law or failure to apply the appropriate law is not an error on the face of the
record”
The elements of what amounts to an error or mistake apparent on the face of the record has been
considered by Hon Justice Stephen Mubiru in the case of;
Abdala Ramathan V Agony Swaib Miscellaneous Civil Application No. 0067 OF 2016
HELD;
Order 46 rule (1) of The Civil Procedure Rules empowers this court to review its decisions where
there is a mistake or a parent error on the face of the record. The case of Nyamogo & Nyamogo
Advocates v Kago [2001] 2 EA 173 defined it thus:
An error apparent on the face of the record cannot be defined precisely or

exhaustively, there being an element of indefiniteness inherent in its very nature, and
it must be left to be determined judicially on the facts of each case. There is a real
distinction between a mere erroneous decision and an error apparent on the face of
the record. Where an error on a substantial point of law stares one in the face, and
there could reasonably be no two opinions, a clear case of error apparent on the face
of the record would be made out. An error which has to be established by a long
drawn process of reasoning or on points where there may conceivably be two
opinions can hardly be said to be an error apparent on the face of the record. Again,
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if a view adopted by the court in the original record is a possible one, it cannot be an
error apparent on the face of the record even though another view was also
possible. Mere error or wrong view is certainly no ground for a review although it
may be for an appeal.
A review may be granted whenever the court considers that it is necessary to correct an apparent
error or omission on the part of the Court. The error or omission must be self-evident and should
not require an elaborate argument to be established. It will not be a sufficient ground for review
that another Judge could have taken a different view of the matter. That the Court proceeded on
an incorrect exposition of the law and reached an erroneous conclusion of law is not a proper
ground for review. Misconstruing a statute or other provision of law cannot be ground for review
but could be a proper ground for appeal since in that case the court will have made a conscious
decision on the matters in controversy and exercised his discretion in favour of the successful
party in respect of a contested issue. If the court reached a wrong conclusion of law, in
circumstances of that nature, it could be a good ground for appeal but not for review otherwise
the court would be sitting in appeal on its own judgment which is not permissible in law
3. The applicant may also rely on sufficient cause. But sufficient cause in that context has been
interpreted it to be analogous to the first two.
Kalokola Kaloli v Nduga Robert
Held; Regarding sufficient reason, this means a reason sufficient on grounds analogous to
those in the rule.
Yusufu v Nokrach [1971] 1 EA 104
Held; The three cases in which alone mere review is permitted are those of new material
overlooked by excusable misfortune, mistake or error apparent on the face of the record, or “any
other sufficient reason”. The expression “sufficient” would naturally be read as meaning
sufficiency of a kind analogous to the two already specified, that is to say, to excusable failure to
bring to the notice of the court new and important matters, or error on the face of the record.
Court did not agree with the submission that the expression “any other sufficient reason” gives a
discretion to the court to consider generally the merits of an application for review. If such a
contention were to prevail every decree or order could be reopened for review on any ground
whatsoever as if the application were an appeal. Undoubtedly court held that a review is not the
same thing as, or even a substitute for, an appeal and that there are definite limits within which
review is permitted. A point which may be a good ground of appeal may not be a good ground
for review.
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 Where the decree or order is by consent of the parties the grounds invoked to review or
otherwise vary the consent are grounds that would vitiate a varied contract Therefore it is
possible for a party to be aggrieved by their own decision entered by consent.
Wasike v Wamboko
Held; It is now settled law that a consent judgment or order has contractual effect and can only
be set aside on grounds which would justify setting a contract aside, or if certain conditions
remain to be fulfilled, which are not carried out.
Kiiza Daniel v Uganda Land Commission.
Held; It is essential to emphasise that a consent judgment derives its legal effect from the
agreement of the parties, and may only be set aside on the same grounds upon which a contract
may be set aside or rescinded because it is governed by the ordinary principles that govern a
contract. Such grounds include collusion, fraud and any other reason that would enable the court
to vary or altogether rescind the contract.
 Where the application for review is heard and determined on merit whether allowed or
dismissed, the relevant remedy for an aggrieved party is to appeal subject to whether or
not the right of appeal is automatic or requires leave.
Dr Ahmed Kisule V Greenland Bank in Liquidation and ors
Held;
Rule 3(1) of Order XLVI which provides for dismissal of an application for a review is not
included on the list under Order 44 rule 1 of orders from which appeal lie as of right. It therefore
falls under Order 44 rule 2 which lists the orders from which an appeal lie only with leave of
court.
It follows therefore, that the applicant needed leave either from the High Court which dismissed
his application for review or from the Court of Appeal to which appeal against that dismissal
would lie if leave was granted.
 The application is brought by a notice of motion under O. supported by a valid affidavit.

It is important to annex the decision being reviewed.
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 When relying on discovery of a new matter, the standard of proof is a little higher as it
requires strict proof of the allegation that couldn’t be discovered early. 0rder 46 r3(2).
 It is also prudent that if there are proceedings that have commenced, that one applies for
stay as the decision is being reviewed.
THE LAW RELATING TO REVISIONS OF JUDGMENTS OR DECISIONS IN

COURTS OF LAW.
 The law that provides for revision and the grounds for revision is S.83 of the CPA
however S.98 may be invoked especially where the decision sought to be revised
emanates from an LC court.
Paskali Juma Wasike v Alex Onyango
On behalf of the applicant, M/s Zaabwe and Co. Advocates filed this application for Revision
under sections 83 and 98 of the Civil Procedure Act asking court to revise the LC.I of Mbaja
Mugungu judgment and the Chief Magistrate’s Decree and execution orders. Counsel for the
respondent contended that an LC Court is not a subordinated court to the High Court unless a
matter came by way of appeal. That section 83 of the Civil Procedure Act by implication
excludes LC Courts as subordinate courts to the High Court. Therefore this court has no
jurisdiction to revise the judgment of the LC Court under S.83 of the Civil Procedure
Held;
S.98 of the Civil Procedure Act was enacted purposely to preserve inherent powers of the High
Court where there is no specific provision of the law to cure a situation. This section saves the
inherent powers of court so that such powers should not be limited in any way by any provision
in a given law. 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.
 The power of revision is only exercisable by the High court of Uganda as a court with
original jurisdiction. It enjoys a general supervisory power in order that it may oversee
the acts of magistrate courts to ensure that there is no abuse of process, there is no
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inordinate delay and substantive justice is administered without due regard to
technicalities. This general power is by virtue of S. 17 of the Judicature Act.
Gulu Municipal Council v Nyeko and Ors (1997) 1 KALR 9
Held:There is no prescribed procedure to initiate revision proceedings under S.83 CPA, however
an applicant aggrieved by the decision of a Magistrate's Court may apply to the High Court to
have the decision of the Magistrate's Court revised.
 The power of revision is only exercisable by the High court in respect of judgments,
proceedings or decisions of Magistrates Court under the CPA
 It follows from the fore going that the High court has no jurisdiction to revise a decision
of the registrar of the High court [because those are decisions of the High court not the
Magistrates court]
Ddegeya Trading Stores (U) Ltd vs. URA Civil Appeal No.44 of 1996, cited in Attorney General
and Uganda Land Commission v James Kamoga, it was held that a judge of the High Court erred
in law to invoke the power of revision under section 83 of the CPA, to set aside a taxation order
made by a registrar. That the High Court’s revisional power applies to decisions of the
magistrates’ courts only.
Grounds for revision
The grounds for revision are statutory and set out in S.83 and they relate to
a) Exercise of a jurisdiction not vested in it in law;

b) failure to exercise a jurisdiction so vested; or
c) acting in the exercise of its jurisdiction illegally or with material
irregularity or injustice,
Munobwa Muhamed v Uganda Muslim Supreme Council
Held; Black’s Law Dictionary (9th Edition) defines revision as “a re-examination or careful
review for correction or improvement” or “an altered version of work
That in cases where High court exercises its revisional jurisdiction, its duty entails examination
by the Court of the record of any proceedings before the High Court for the purpose of satisfying
itself as to the correctness, legality or propriety of any finding, order or any other decision and
the regularity of any proceedings before the High Court.
That the court revises the proceedings, judgments and orders of the magistrates’ courts at any
opportunity that it gets, i.e. whenever their records come before it. It is also clear from the
provisions of s. 83 (c) CPA that the judicial discretion of magistrates does not escape this court’s
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revisional power. Decisions are revised whenever the trial magistrate fails to exercise his/her
jurisdiction or where he/she acts illegally or with material irregularity or injustice.
Muhinga Mukono v Rushwa Native Farmers Co-Operative Society Ltd [1959] 1 EA 595
The applicants applied to the High Court for revision of the order on the grounds that the
subordinate court had no power after the time had expired to extend the time for filing defence.
Whether High Court has right to revise interlocutory order of subordinate court.
Held;
The High Court has the right to revise an interlocutory order of a subordinate court; the right,
however, is discretionary. In the exercise of its discretion it is well established that the High
Court will not necessarily interfere in every case where the subordinate court has made an
irregular order unless its failure to do so would result in substantial injustice.
In Murakatete Faith v Boniface Ayebare, H.C. Civil Revision No. 43 of 2011, before a Chief
Magistrate’s Court the plaintiff claimed a sum of U shs 47.000.000= (forty seven million only),
interest thereon at the rate of 8% per month with effect from 28th July 2009, until payment in
full, a liquidated penalty of 20% of the outstanding amount as per the agreement and the costs of
the suit resulting in a judgment and decree of the Chief Magistrate in excess of his pecuniary
limit of shs 50,000,000/=. The High Court observed that although at the time of filing the suit it
was ostensibly within the pecuniary jurisdiction of the court, the chief magistrate acted without
jurisdiction when he passed judgment and issued a decree which was beyond his pecuniary
jurisdiction and rightly declined to execute the decree because his judgment and subsequent
orders were void and an order of revision was made setting them aside.
Mubiru v kayiwa
 Where the challenge to the decision of the lower court is premised on proceedings alleged
to be a subject of manifest illegality, it must also be proved that the illegality goes to the
root of the matter and causes a miscarriage of justice.
Bwambale Byasaki v Shaka Augustine
The law lets some errors pass and catches only those that are material and have affected the
determination of the case causing injustice. The outcome is questioned if court acted with
material irregularity and it resulted into injustice. So, no reasonable court would entertain an
application for revision orders against every procedural error or step wrongly or irregularly taken
by a trial court before the matter is finally determined by the magistrate’s court. If it were to be
so no trial would come to a conclusion before a lower court. Counsel would be rushing to the
High Court all the time alleging material irregularity or illegality or injustice instead of waiting
to file an appeal
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 The court’s powers are discretionally in nature and where the grant of an order of
revision is likely to be prejudicial to the parties inclusive of third parties the court may
not grant the order.
Held; Section 83 of the CPA as quoted above is within the discretion of court to determine that
the lower court worked outside the law or within the law with material irregularity. As rightly
put by Justice Elizabeth Musoke in the case of Bwire Wafula & Another –Vs- John
Ndyomugyenyi , Civil Revision No. 016 Of 2011, the High Court of Uganda has very wide
powers in as far as Revision of proceedings of magistrate’s courts are concerned. Section 83
CPA provides expressly for the procedure of how to initiate the matters for revision. It reads in
part.
“83. The High Court may call for the record of any case which has been determined under this
Act by any magistrate’s court
Kabwengure v Charles Kanjabi sited in mubobwa muhammed supra
 Where the application is made belatedly and after third parties have acquired an interest
in the subject matter of the suit, the court may be very reluctant to grant the order
Muhobwa muhammed v Uganda muslim supreme council
 Revision is exercised in presence of both parties and given an opportunity to be heard. An

application for revision cannot be entertained by court save where the respondent thereto
is served with the notice of hearing
 However if the court considers that the circumstances do not justify revision eg because
of an inordinate delay or for any other cause, the court may decline to grant the revision.
Munobwa muhammed v Uganda muslim council
 An application for revision in terms of procedure is not provided for in S.83 but it may be
commenced by notice of motion or by formal letter or the court may in appropriate cases
move itself or may be moved by the lower court.
Law Development Centre Vs. Edward Mugalu & anor.
Held: It is sufficient that any aggrieved party writes to the Registrar High Court drawing his
attention to the irregularity by a subordinate court and requests that the matter be brought before
a judge.
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How are records called for? The Registrar or relevant court officer writes to the magistrate in
charge of the record to be brought then it is placed before the judge (the High Court) for perusal.
How the matter is brought to the attention of the High Court is informal. It is not formal and is
therefore not formalized under the Civil Procedure Rules. The framers of the Civil Procedure
Rules were so careful and expressly clear not to provide for filing of chamber summons yet it is a
matter initiated by the Judge’s Chambers. I do not see how counsel claims he has a right to file a
Notice of Motion (formally) and shove it in the face of court. He can only file pleadings or write
his opinion or be heard on being invited by court. In fact, the law merely provides for the right of
the parties to be heard but does not provide for the filing of formal court proceedings by way of
Notice of Motion as of right by a party who thinks the court committed an error on record. Part
(c) reads in part:
“......the High Court may revise the case and may make such orders in it as it thinks fit; but no
such powers of revision shall be exercised-
(d) Unless the parties shall first be given the opportunity of being heard;.....”
This court is of the firm view that Revisions are a protected reserve of the court exercising its
discretion, judicially, to correct errors on the face of the record. It is not a procedure open to any
party to apply for. The discretion is exercised by the High Court which invites the parties to
address it on the irregularity brought to its attention. If the practice is different, that does not
make the Notices of Motion the most rightful manner of bringing the matter to the attention of
the High Court. If the legislature had intended that, the wording of the law of Revision would be
similar to that of Reviews.
Roland Kakooza Mutale v AG and igg [the high court may adopt procedure that is convenience
for practice in absence of procedure] and also read S.39[2] of the judicature Act “Where in any
case no procedure is laid down for the High Court by any written law or by practice, the court
may, in its discretion, adopt a procedure justifiable by the circumstances of the case.”
JUDICIAL REVIEW
Judicial review is a process by which the High Court exercises supervisory jurisdiction over the
proceedings and decisions of inferior courts or tribunals or other bodies or persons who carry out
quasi-judicial functions or who are charged with the performance of certain public acts and
duties.
Clear Channel Independent (U) Ltd Versus Public Procurement And Disposal Of Public
Assets Authority.
HELD;
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Judicial Review is the process by which the High Court exercises its supervisory jurisdiction
over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who
carry out quasi-judicial functions, or who are engaged in the performance of public acts and
duties. Those functions/duties/acts may affect the rights or liberties of the citizens. Judicial
review is a matter within the ambit of Administrative Law.
 Judicial review covers a series of prerogative orders obtainable from the High Court
because it has unlimited original jurisdiction and wide powers to grant a variety of
remedies. These orders are discretionary and although judicial review can result in
reversing of a decision, it is not an appeal.
 Originally, in England these orders were only available to and used for benefit of the
Crown against ordinary people. However, through their systematic application, the
Crown to make public authorities and inferior tribunals do the bidding of the ground.
This kept these inferior bodies within the proper exercise of authority.
 This confinement resulted in efficiency, uniformity and order in the public administration
and judicial systems. Eventually, they became available to the common man.
 In Uganda the constitution contains a number of rights and this has made judicial review
an appropriate remedy.
 Judicial review is thus concerned with prerogative orders which are essentially remedies
for the control of the exercise of power by those in public office. These remedies are not
intended for final determination of private rights as maybe the case in ordinary civil suit.
John Jet Tumwebaze V Makerere University Council and 3 Others Civil Application No.
353 of 2005
“The orders be they for declaration, mandamus, certiorari or prohibition are discretionary in
nature. In exercising its discretion with respect to prerogative orders, the court must act
judicially and according to settled principles.Such principles may include common sense and
justice.Whether the applicant is meritorious, whether there is reasonableness, vagilance and
not any waiver of the rights by the applicant.”.
Balondemu David v LDC

The principles governing Judicial Review are well settled. Judicial Review is concerned with
Prerogative Orders which are basically remedies for the control of the exercise of power by those
in public offices. They are not aimed at providing final determination of private rights which is
done in normal civil suits. The said orders are discretionary in nature and court is at liberty to
refuse to grant any of them if it thinks fit to do so even depending on the circumstances of the
case where there had been clear violation of the principle of natural justice; John Jet Mwebaze
Vs Makerere University Council & 2 others Misc. Cause No. 353 of 2005.
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 The discretion has to be exercised judicially but it follows a line of settled principles.
That discretion must also be based on common sense and justice.
Moses Ssemanda Kazibwe Vs James Ssenyondo Misc Application No. 108 of 2004.
Held; The discretion has to be exercised judicially and according to settled principles. It has to
be based on common sense as well as justice.
John Jet Tumwebaze V Makerere University Council and 3 Others Civil Application No.
353 of 2005
In exercising its discretion with respect to prerogative orders, the court must act judicially and
according to settled principles. Such principles may include; Common sense and justice,
Whether the application is meritorious, Whether there is reasonableness Vigilance and not any
waiver of rights by the Applicant
 The purpose of Judicial Review was summed up in Lord Hailsham St Marylebone in

Chief Constable of North Wales Police Vs Heavens [1982] Vol. 3 All ER as follows:-
“The purpose of Judicial Review is to ensure that the individual receives fair treatment
not to ensure that the authority after according a fair treatment reaches on a matter it
is authorized or enjoined by law to decide from itself a conclusion which is correct in
the eyes of the court.”
Mukasa Mbidde and Anor v LDC

Held; The purpose of judicial review is to ensure that lawful authority vested in a tribunal or
body of persons is not abused by unfair treatment. That the machinery of government operates in
a lawful and fair manner. See Ridge Vs Boldwin [1964] AC 40
 Initially, Uganda, judicial review was applied for in two stages; initially it required leave
where court is convinced that there was something to entertain. However, under rules in
2009 Judicature (Judicial review rules) the position changed.
 The substance of the law is in S. 36 of the Judicature Act which provides essentially that
the High Court may on application grant any one or more of the reliefs stated therein;
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mandamus, certiorari, prohibition, the other one being an injunction and also
declarations.
The High Court can also grant damages but has been reluctant to do so especially as
relates to special damages. Rule 8 of 2009 rules, S. 36(2)
 There must be a decision to quash. Mere findings and recommendations are not subject of
judicial review.
Wakiso Transporters Tour & Travel Ltd V IGG And Ors.
Held; This case yet again raises the issue as to whether or not these findings, recommendations,
suggestions and observations as opposed to decisions can be a subject of the prerogative orders
of certiorari. In the case of Dott Services Ltd Vs Attorney General And Auditor General
(Misc Cause No. 125 of 2009) (unreported) the Hon. Justice V.F Musoke Kibuka discussed the
distinction and held as follows:-
“Certiorari issues to quash decisions made by a statutory body or by a public officer or an

inferior court or tribunal. It cannot issue against mere findings, recommendations,
suggestions or observations. In the instant application the report of the 2nd respondent against
which the prerogative order is being sought clearly contains no decision that can be quashed
by way of issuance of certiorari...........”
In the instant case court found that there is no decision contained in these recommendations that
merits an order of certiorari to quash the impugned Report. There is no decision to quash.
Application has no merit and dismissed.
Picfare Industries Ltd v Attorney General and Anor
Held; The application would not succeed also as there is no indication in this application that
there is any decision complained of which is tainted with any illegality, irrationality and
procedural impropriety. 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.
There is nothing to show that the respondents herein 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.
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Application for judicial review
 The application for judicial review is by Notice of Motion supported by a valid affidavit,
as provided for by Rule 6(1) of 2009 rules
 Applications for judicial review must be made promptly and in any case within three
months from the time the matter arose. S. 36(7), Rule 5 of the 2009 rules. However,
Court can be moved to extend the time if there is a good reason.
Muwanguzi Mugalu v Uganda Railways Corporation.

Had the applicant got a grievance then, he ought to have applied for Judicial Review within 3
months.
It is provided for under Rule 5(1) of the Judicature (Judicial Review) Rules 2009 that:
“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.”
Court found that this application for judicial review was not properly before court for having
been filed out of time without the simple process of seeking leave to do so. The same is struck
out but with no order as to costs.
Picfare Industries Ltd v Attorney General and Anor
According to learned counsel for the respondents, this application is glaringly time barred and it
should be dismissed with costs. From the record, this application was filed on 19 th April 2013
seeking to enforce a consent judgment entered into on 20th May 2011. Learned counsel for the
respondent argues that by filing this application on 19th April 2013 two years after judgment, the
applicant ought to have sought leave to file the application out of time as provided for under
Rule (1) of the Judicature (Judicial Review) Rules 2009. Rule 5(1).
Held; that an application should be filed three months from the time when the grounds of the
application first arose. By filing this application on 30th April 2013 almost one year after the
grounds arose, this application is clearly time barred because the filing was clearly done more
than three months from due date. It was held in Re Mustapha Ramathan for orders of
certiorari prohibition and injunction Civil Appeal 25 of 1996 (CA) that:
215
“Statutes of limitation are in their nature strict and inflexible enactments. Their overriding
purpose is interest reipublical ut sit finis litum, meaning litigation shall be automatically
stifled after a fixed length of time irrespective of the merits of the particular case.”
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. This application is incompetent and will be struck out.
IBB International Limited v Civil Aviation Authority & 2 Ors (MISCELLANEOUS

CAUSE NO. 100 OF 2015) [2017]
HELD; From the record the suspension letter of the Applicant’s contract was issued on 7th April
2015 and received by the Applicant on 8th April 2015. The application was filed on 10th July
2015. Whether I take the date of issue or the date of receipt by the Applicant, the application
filed on 10th July was two to three days outside the three-month period stipulated for its filing
under Rule 5(1) the Judicature (Judicial Review) Rules. However given it is just a few days, in
the interest of justice under section 98 of the Civil Procedure Act and the substantive justice over
technicalities envisaged under Article 126 of the Constitution, I hereby extend time for filing the
application. This is because to throw out the application at this stage in the circumstances of this
case would be an unnecessary technical injustice.
 In terms of practice in Uganda, Judicial Review comes out of Art 42 of the Constitution
which provides;
“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.
 Judicial review is different from ordinary review under S. 82, and the Court is not
reviewing its own decisions but rather decisions of an inferior body. Judicial review is
not an appeal and concerns itself with the process.
Clear Channel Independent (U) Ltd Versus Public Procurement And Disposal Of
Public Assets Authority
Held; Judicial review is different from the ordinary judicial review of the court of its own
decisions, revision or appeal in the sense that in the case of ordinary review, revision or
appeal, the court’s concerns are whether the decisions are right or wrong based on the
laws and facts whereas the remedy of judicial review, as provided in the orders of
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mandamus, certiorari and prohibition, the court is not hearing an appeal from the decision
itself but a review of the manner in which the decision was made
Wakiso Transporters Tour & Travel Ltd v IGG and Ors.
Held; The purpose of judicial review has been well articulated by both counsel. It is not
concerned with the decision in issue perse but with the decision making process. It essentially
involves the assessment of the manner in which the decision is made; it is not an appeal and the
jurisdiction is exercised in supervisory manner, not to vindicate the rights as such but to ensure
that public powers are exercised in accordance with basic standards of legality, fairness and
rationality
 Judicial review will confine itself to the assessment of the manner in which the decision
was made. This is to ensure that public powers are exercised on the basis of legality,
fairness, rationality and procedural propriety.
Koluo Joseph Andres & 2 Ors Vs Attorney General Misc. Cause No. 106 of 2010 and I
agree that:
“It is trite law that Judicial Review is not concerned with the decision in issue per se
but with the decision making process. Essentially Judicial Review involves the
assessment of the manner in which the decision is made. It is not an appeal and the
jurisdiction is exercised in a supervisory manner, not to vindicate rights as such but to
ensure that public powers are exercised in accordance with the basic standards of
legality, fairness and rationality.
 Any person affected by the decision of a public power will apply for judicial review.
OCHIENG PETER &ORS V PRESIDENT GENERAL OF DP &ORS

The applicants challenged the procedure for the election of Mathias Nsubuga as Secretary
General of DP contending that it contravened several articles of the DP constitution since there
was no formal communication to the members of the NEC, also the meeting was headed by the
President General instead of the Party Chairman and the meeting was attended by members who
were not members of the council and not authorized to participate. The applicants applied for
Judicial Review for orders of Certiorari, prohibition and mandamus.
HELD
There is no requirement under sections 33,36, 37 and 38 of the Judicature Act that prerogative
orders shall only issue against public bodies and offices that have corporate status.
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Persons natural or artificial bound to explain and defend in any forum the decisions they take in
the performance of their duties are amenable to Judicial review, as long as it is established that
they acted without or in excess of jurisdiction, or where there is an error of law on the face of the
record or failure to comply with the rules of natural justice.
The meetings were not legally held or convened and consequently the election of Mathias
Nsubuga as Secretary General of DP was in violation of the party’s constitution.
The application met the requirements stipulated in the law for judicial review. The orders of
certiorari, prohibition and mandamus were granted quashing the decision of the National Council
of DP, prohibiting the confirmation of Mathias Nsubuga as secretary General of DP and
compelling the respondents to implement and follow the party’s constitution when electing the
Secretary General.
Grounds
 The grounds on which this power is invoked are provided in rule 3 dealing with cases
appropriate for judicial review. These are cases where the remedies sought are in the
nature of the five prerogative orders earlier mentioned. The ground encompasses both the
factual background and the nature of the remedy sought.
IBB International Limited v Civil Aviation Authority & 2 Ors (MISCELLANEOUS

CAUSE NO. 100 OF 2015) [2017]
The grounds for the application are briefly that in May 2014, the first Respondent invited
bids for the construction of a search park, shelter and road at Entebbe International Airport.
After a lengthy open bidding procurement process, the Applicant was selected the best bidder
by the Contracts committee, notified as such on or around 16th September 2014 and awarded
the contract for the same sometime in November 2014 following clearance from the Solicitor
General. However the second Respondent, the Managing Director and Accounting Officer
for the first Respondent at all material time, refused and/or neglected to execute the said
contract until 20th March 2015. Subsequent to this execution, the second Respondent, in
blatant abuse of the authority vested in him by virtue of his employment, made it impossible
for the Applicant to take over the site in order to perform the contract, thereby interfering
with the Applicant’s right to do the same. The Applicant contends that the second
Respondent acted in abuse of his authority, illegitimately, illegally and with reckless abandon
218
with the sole intention of permanently subverting the right of the Applicant to perform the
contract.
The first Respondent contended that this is not a proper case for judicial review and that the
Applicant should have filed for breach of contract
Held;
the fact that the Applicant may have had the option to file for breach of contract which was
not even a statutory remedy, did not bar the Applicant from filing for judicial review. What is
clearly made out is that there was an administrative decision that was taken and the Applicant
was affected by it. This is clearly a proper case for judicial review. This preliminary
objection is dismissed.
Dr. Wenceslaus Rama Makuza v Civil Aviation Authority & Anor (MISCELLANEOUS
CAUSE No. 205 OF 2017) [2017]
This is an application for Judicial Review challenging the decision by the Minister of Works
and Transport terminating the contract of service of the applicant as the Managing Director
of the 1st respondent as illegal, ultravires, null and void. The 2nd respondent’s counsel also
raised a preliminary objection on whether this is a proper case for Judicial Review. He
submits that the circumstances of this application indicate that this is an employment dispute
making it not amenable to Judicial Review.
Held; hat this matter does not fall under the ambit of Judicial Review. The applicant has
essentially presented an employment dispute and the claim is of the character of an
employment suit. The grounds raised by the applicant are essentially for alleged breach of an
employment contract and the remedies sought are essentially remedies for alleged breach of
contract and/or determination of rights under an employment contract.
This matter does not fall under the ambit of Judicial Review because what the applicant is
seeking requires to be proved by evidence. The applicant ought to have brought this matter
under the Employment Act and by ordinary plaint. The concern for Judicial Review is only
the decision making process in administration. It is a remedy of last resort. Where
219
alternative remedies exist, the court has to be satisfied that Judicial Review is more
convenient, beneficial and an efficacious remedy available. Application struck out.
 An applicant for judicial review can only succeed where it is proved that the case falls
within the specified rounds for judicial review. The grounds are illegality, irrationality
and procedural impropriety. Proof of any of those grounds is sufficient for an application
to succeed.
His Worship Aggrey Bwire v Attorney General
Held; It is trite that judicial review can only be granted on three grounds namely:
Illegality; irrationality and procedural impropriety – The first two grounds are known as
substantive grounds of judicial review because they relate to the substance of the disputed
decision. Procedural impropriety is a procedural ground because it aims at the decision –
making procedure rather than the content of the decision itself.
Rosemary Nalwadda v. Uganda Aids Commission HCMA No. 0045 of 2010 it was held that
it is trite that judicial review can be granted on three grounds namely; illegality, irrationality and
procedural impropriety.
Twinomuhagi Pastoli vs. Kabale District Local Government Council and 2 Others [2006]
HCB VI. It was held that in order to succeed in an application for judicial review, the applicant
must show that the decision on which the act complained of is tainted with illegality, irrationality
and procedural impropriety.
 Illegality means that the decision making body commits an error of law in the process of
taking its decision. These instances include acting without jurisdiction, acting ultra vires,
acting contrary to the provisions of any law or principles that are settled. Eg if a body
terminates employment of a person or a contract, yet it does not have the mandate to do
so.
220
Clear Channel Independent (U) Ltd Versus Public Procurement And Disposal Of Public
Assets Authority
The applicant submitted a bid to the Civil Aviation Authority for the tender of the Management
of Advertisement at Entebbe International Airport following a request for bids by the said Civil
Aviation Authority. It is the applicant’s case that its bid was unjustly and unreasonably rejected
by the said Civil Aviation Authority and the tender was awarded to M/s Alliance Media Ltd.
upon the Civil Aviation Authority (‘the CAA’) rejecting its tender bid. The applicant then
applied to the respondent for Administrative Review of the said decision as by law established.
The respondent in its review process found that the tender process had been marred by several
irregularities and omissions contrary to the PPDA Act and Regulations. Despite these findings,
however, it (the respondent) allowed the tender process to continue. The Applicant then applied
to the High Court for judicial review and orders of certiorari and prohibition.
Whether or not the respondent erred in law when it allowed the tender process to proceed
despite having found irregularities in the tender process
HELD
The principle, so far as it affects the present case, is that if a statute prescribes, or statutory rules
or regulations binding on a domestic tribunal prescribe, the procedure to be followed, that
procedure must be observed. It is trite that when an administrative body does something, which it
has in law no capacity to do or does it without following the proper order, it is said to have acted
illegally. This will be a ground for applying for orders of Certiorari, mandamus or prohibition
because such an act is beyond powers and hence ultravires
That since the respondent found CAA’s award illegal on account of non-compliance with the
provisions of PPDA Act, the respondent’s decision in allowing CAA to continue with the
procurement process was also illegal null and void. As such Court allowed the application for
judicial review, granted the orders of certiorari and prohibition sought and ordered a repeat of the
tender process.
 Irrationality means that there is such unreasonableness in the decision taken that no
reasonable authority addressing itself to the fact and to the law would make such a
decision. In other words that decision is outrageous and defies logic and therefore cannot
be allowed to stand.
In Associated Provincial Picture Houses Vs Wednasbury Corporation court held that

public authority must act reasonably and must take into account relevant considerations.
According to Lord Greene, an unreasonable decision is one that no reasonable body could
have come to . it is not what court considers reasonable.
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 Procedural impropriety refers to failure to act fairly in making the decision as for
example by not following or observing rules of natural justice or being procedurally
unfair to one of the parties. This may include failing to accord adequate time, failing to
notify about an issue complained about, failing to observe statutory rules in the exercise
of the authority.
Pastoli Twinomuhangi Vs Kabale District Local Government (supra)
Held; “Procedural impropriety” includes failure to adhere to procedural rules expressly laid
down in a statute or legislative instrument by which such authority exercises jurisdiction to
make a decision”.
Ridge Vs Baldwin [1964] AC 40, HELD “a decision reached by an administrative body in

disregard of the principles of fair hearing or natural justice is null and void”
 If the court is satisfied, it will make the appropriate orders. Judicial review lies at the root
of administrative law, administrative acts and its purpose is to ensure that a lawful
authority vested in a body or in a person is not abused by unfairness.
 It is intended to ensure that the machinery of government operates in a lawful manner.
Mukasa Mbidde v LDC;
Prerogative Remedies
The prerogative remedies granted by court are certiorari, mandamus, prohibition, declarations,
injunctions and habeas corpus
Twinamatsiko Elly V Makerere University
Held;
The high Court derives the power to grant prerogative orders from Section 36(1) of the
Judicature Act Cap 13. Order 46A of the Civil Procedure Rules regulates the procedure for the
application for Judicial Review
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Prerogative orders are remedies for the control of the exercise of powers by those in public
offices, and the remedy is available to give relief where a private person is challenging the
conduct of a public authority or public body, or any one, acting in the exercise of a public duty.
The orders, which may be for declaration, mandamus, certiorari or prohibition are discretionary
in nature, and in exercising its discretion, the court must act judicially and according to settled
principles. Such principles may include common sense and justice, whether the application is
meritorious, whether there is reasonableness, vigilance and not any waiver of rights by the
applicant. See John Jet Tumwebaze Vs Makerere University Council and 3 others - Civil
Application 353 of 2005
On Mandamus:
“an order of mandamus will compel the performance of a public duty which is imposed
on a person or body of persons by statute and where that person or body of persons has
failed to perform the duty to the detriment of a party who has a legal right to expect the
duty to be performed”.
On Certiorari:
“Only an order of certiorari can quash a decision already made an order of certiorari will
issue if the decision is made without or in excess of jurisdiction, or where the rules of natural
justice are not complied with, or such like reasons”.
On Prohibition:
“It is an order from the High Court directed to an inferior tribunal or body which
forbids that tribunal or body to continue proceedings therein in excess of its
jurisdiction or in contravention of the laws of the land. It lies, not only for the excess of
jurisdiction or absence of it, but also for a departure from the rules of natural justice.
It does not, however, lie to correct the course, practice or procedure of an inferior
tribunal, or a wrong decision on the merits of the proceeding.
According to the case of John Jet Tumwebaze (supra)

a declaration is defined as
“…a pronouncement by court, after considering the evidence and applying the law to that
evidence, of an existing legal situation. A declaration enables a party to discover what his/her
legal position is, about the matter of the declaration; and thus open a way to the party concerned
to resort to other remedies for giving effect to the declared legal situation…”
“…certiorari issues to quash a decision which is utra vires as vitiated by an error on the face of
the record… certiorari looks to the past
prohibition was held to

223
“forbid some act or decision which would be utra vires…”
“mandamus… is issued in order to compel performance of a statutory duty. It is used to compel

public officers having responsibilities in public offices and public bodies to perform duties
imposed upon them by an Act of Parliament…”
Grounds on which a remedy may be refused.

 As stated earlier, judicial review orders are discretionally and therefore, if the court is
properly advised on the law and facts, it would not issue orders whose purpose is to
pervert the course of justice or undermine proper functioning of government machinery
or the enforcement of good governance or the maintenance of the rule of law.
 The courts is mindful when assessing whether the applicant has made out a case these
discretionally orders. Courts are mindful because if under the guise of judicial review,
they were to start issuing orders permanently blocking supervision or investigations in
public offices, it would defeat the very purpose for which the courts themselves have
been granted supervisory powers.
The court will consider among other things.
- Whether the application has merit

- Whether there is reasonableness
- The vigilance or otherwise of the applicant
- And any other relevant factor.
Balondemu v LDC
HELD; Factors that ought to be considered include; whether the application has merit or
whether there is reasonableness, vigilance without any waiver of the rights of the applicant.
Court has to give consideration to all relevant matter of the cause before arriving at a decision in
exercise of its discretion.
Prayer that the applicant be found to have passed his bar course was rejected as an inappropriate
remedy for judicial review.
Mukasa Mbidde v LDC; an attempt to obtain an injunction to stop LDC from appointing a
committee to investigate the diplomas held by the applicants was rejected.
224
Simon v Uganda Law Society and Rutt Sebatindira 2013; The attempt to annul an election by
way of judicial review was rejected.
APPEALS;
(General Principles and Powers of appellate courts)
 An appeal ordinarily refers to a reconsideration of a matter tried and adjudicated upon by

the Court of first instance (or first and second appellate courts) by a higher court in a
hierarchy described by law to ascertain the correctness of the decision complained of.
FX Mubuuke v UEB, it was held that an appeal is a rehearing by the appellate court.
 An appeal therefore lies from one court to the higher court in the hierarchy of court and
no appeal can lie from the same court to the same court
Orient Bank v Fredrick Zzabwe it was held that a Court cannot be asked to sit on appeal
against its decision.
 An appeal is a creature of statute and can only lie where a relevant statute describes so.
 An appeal is a creature of a statute and the right of appeal cannot be implied or inferred
Baku Rafael and anor v Attorney General, It is trite law that jurisdiction is created by a
statute. Court quoted the case of Attorney General vs Shah here it was stated thus “It has long
been established that appellate jurisdiction springs only from statute. There is no such thing as
inherent appellate jurisdiction”.
225
In Roko Construction Ltd v Mohamed Hamid it was held that the legal principle is that there
is no right of appeal against a decision of a court of competent jurisdiction unless that right is
expressly provided for. The right to appeal is a creature of statute. It cannot be given by mere
implication:
Nalongo Burashe v Kekitiibwa Magdalene
Held;
It is long settled law that there is no such thing as an inherent right of appeal and that an appeal is
a creature of statute. And therefore the argument that leave to appeal was a simple procedural
matter was wrong. This court lacked jurisdiction to entertain a matter in which leave to appeal
was required but was never sought or granted. The appeal was therefore incompetent and liable
to be struck out on that account
However since the appeal raised very serious issues of law that were of public importance which
required court’s determination, court on its own motion granted the appellant leave to
appeal pursuant to Rule 42 of the Judicature (Court of Appeal Rules) and the consequential
effect of which was to regularize this appeal which would otherwise have been struck out.
Lukwago Erias v Attorney General SC civil application No 06/2014
Held; The right of appeal is a creature of Statute. There is nothing known in law as an inherent right
of appeal. The legal foundation for application for stay of execution pending an appeal is the right of appeal
to the proper court and the fact that a Notice of Appeal has been filed in that court. Where a Notice of
Appeal has been filed but the right of appeal does not exist, the Notice of Appeal is incompetent and cannot
form the basis for an application for stay of execution pending appeal, as there is no pending appeal.
 It is therefore prudent for an intending appellant to ascertain existence of the right of

appeal before preferring such an appeal to a higher court.
Pius Niwagaba v LDC
The issue in this application seemed to be whether or not there is a law which creates a right of
appeal from the decisions of the High Court to the Court of Appeal against prerogative orders
of certiorari, mandamus and prohibition.
Held;
226
The Court agreed with both counsel in their submission that appellate jurisdiction is a creature
of statute. Section 36 of the Judicature Act empowers the High Court to issue orders of
certiorari, mandamus and prohibition. The right of appeal in prerogative orders under Section
36 is provided for in Sections 10 and 66 of the Judicature Act and of the Civil Procedure Act
respectively. These two Sections have the same effect thus; the Court of Appeal has the
jurisdiction to hear appeals from decisions of the High Court. Therefore, where an order is
made by the High Court on a matter brought to it by some statutory provisions and not the Civil
Procedure Act or Rules, that order is appealable as of right unless the appeal is specifically
excluded by some special legislation. The decisions so made by the High Court under Section
36 of the Judicature Act are, therefore, appealable to the Court of Appeal
Babcon Uganda Ltd v Mbale Resort Hotel
whether the application to the High Court under S. 34(I) of the Arbitration and Conciliation Act
is adjudicated upon by the High Court in exercise of its original jurisdiction as envisaged in
Section 6(I) of the Judicature Act and if so (2) whether the dissatisfied party has an automatic
right of appeal to the Supreme Court.
Held; The appellant have no automatic right of Appeal to Supreme Court. The right of appeal
was specifically barred by S. 9 of the ACA which provides for the extent of Courts intervention
as follows:- Except as provided in this Act no Court shall intervene in matters governed by
this Act
 The right of appeal may be automatic or subject to leave and the intending appellant must
ascertain whether leave is required or not. Otherwise, failure to obtain leave renders the
appeal incompetent.
In Matovu v Abacus Pharmacy it was held; The position of the law is now settled. Where
leave is required to file an appeal and such leave is not obtained the appeal filed is
incompetent and cannot even be withdrawn. It must be struck out. See Makhangu v
Kibwana [1995-1998] EA 175. This principle was applied by the Supreme Court of Uganda
in the case of Dr. Sheikh Ahmed Mohammed Kisuule v Greenland Bank (In
Liquidation) S.C.C.A No. 11 of 2010 where a preliminary objection had been raised on the
ground that the appellant had not sought leave of the High Court or Court of Appeal prior to
filing the appeal. Kitumba, JSC observed that obtaining leave is not merely a procedural
matter but an essential step. She held that no genuine steps had been taken to apply for leave
227
and so there was no competent appeal before the court. Leave to appeal against the decision
dismissing the applicant’s application for review had neither been sought nor had it been
obtained. This failure could impact on the likelihood of success of the applicant’s appeal
pending before this court.
 There are ordinarily 3 forms and stages of appeals. Namely, the first appeal, second and
third appeals.
Role of appellate courts.
 Where an appeal is lodged in the first appellate court, the mandate of that court is to
subject the entire evidence on record to a fresh and exhaustive scrutiny taking into
account the fact that it did not observe the demeanor of witnesses and considering the
judgment of the trial court without shrinking from overruling where it finds that it was
not based on correct evaluation of evidence
Banco Arabe Espanol v. Bank of Uganda Supreme Court Civil Appeal No.8 of 1998
Held; The first appellate court has a duty re-appraise or re-evaluate evidence by affidavit as well
as to evidence by oral testimony, with the exception of the manner and demeanour of witnesses,
where it must be guided by the impression made on the trial judge
Court considered the case of Kifamunte Henry v Uganda;
This court recently restated the application of this rule in the case of Kifamunte Henry v.
Uganda Supreme Court Criminal Appeal. No. 10 of 1997 (unreported). Although the
principles stated therein were in respect of a criminal appeal, there can be no doubt that they
equally apply to civil appeals. On a first appeal, an appellant is entitled to have the appellate
court's own consideration and views of the evidence as a whole and its own decision thereon.
In Kifamunte Henry (supra) this court said:
"We agree that on first appeal.... The appellant is entitled to have the appellant's own
consideration and views of the evidence as a whole and its own decision thereon. The first
appellate court has a duty to rehear the case and to reconsider the materials before the trial
judge. The appellate court must then make up its own mind not disregarding the judgment
appealed from but carefully weighing and considering it. When the question arises which
witness is to be believed rather that another and that question turns on manner and demeanor,
the appellate court must be guided by the impression made on the judge who saw the witness
but there may be other circumstances quite apart from the manner and demeanor which may
show whether statement is credible or not which may warrant a court in differing from the
judge even on a question of fact turning on credibility of witness which the appellate court
has not seen.”
That the duty of a first appellate court as restated in the case of Kifamunte (supra) applies to re-
appraisal or re-evaluation of evidence by affidavit as well as to evidence by oral testimony,
228
except, of course, that impression of demeanour of witnesses does not arise in the case of
affidavit evidence.
The above principles in Kifamunte were also adopted in the case of Uganda Breweries v
Uganda Railway Corporation holding that;
There is no set format to which a revaluation of evidence by a first appellate court should
conform. The extent and manner in which re-evaluation may be done depends on the
circumstances of each case and the style used by the first appellate court. A first appellate
Court is expected to scrutinise and make an assessment of the evidence but this does not
mean that the Court of Appeal should write a judgment similar to that of the (trial)."
Buso Foundation Ltd v Bob Mate; justice Lydia Mugambe.
Held; The Supreme Court in Father Nanensio Begumisa and 3 Ors v. Eric Tiberaga SCCA
No. 17 of 2004 observed that the legal obligation of the first appellate court is to re- appraise
evidence and is founded in common law, rather than rules of procedure. 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 never seen or heard the witnesses, it must weigh the conflicting evidence
and draw its own inference and conclusions.
The duty of this court, this being an appeal of first instance, is set out in rule 29 of the
Rules of this court. On a first appeal, an appellant is entitled to have the appellate court’s
own consideration and views of the evidence as a whole and its own decision
thereon. The first appellate court has a duty to re-hear the case and to reconsider the
materials before the trial judge. The appellate court must then make up its mind by
carefully weighing and considering the evidence that was adduced at trial.
When the question arises as to which witness is to be believed, and resolution of that
question turns on the manner and demeanour of the witness, then the appellate court must
be guided by the impression made by the trial judge who saw the witness at trial.
However, there may be other circumstances, apart from the manner and demeanour of a
witness, which may show whether a particular statement of a witness is credible or not,
which may warrant a court in differing from the trial judge even on a question of fact
turning on the credibility of a witness whom the appellate court has not had the
opportunity to see at trial.
229
The duty of a first appellate court to re-appraise or re-evaluate the evidence applies to
both oral testimony of a witness in court as well as to affidavit evidence, except in case of
the affidavit evidence where the deponent is not cross-examined on the affidavit in court,
the issue of demeanour of a witness does not arise
 In an election petition appeal, the first appellate court must be more conscious and must
take into account the fact that witnesses are likely to be partisan and the polarized of
election petitions in its evaluation of evidence.
This being an appeal in an election petition of first instance, this court cautions itself, like the
trial court also ought to have cautioned itself that, in re-appraising and re-evaluating the evidence
adduced at trial, regard must be had to the fact that witnesses, though not necessarily always,
tend to be partisan in supporting their candidates against the rivals in the election contest. This
may result in deliberate false testimonies or exaggerations and to make the evidence adduced to
be very subjective. This calls upon court to have the authenticity of such evidence to be tested
from an independent and neutral source by way of collaboration.
Kamba Saleh Moses Vs Namuyangu Jennifer (ELECTION PETITION APPEAL NO.0027

OF 2011)
Held; This court also has the duty to subject the entire evidence on record to a through and fresh
review and scrutiny and make its own inferences. In doing so, however, it has to take it into
account the fact that it did not see the witnesses testify and make allowance for that
 The first appellate court is vested with similar powers like those of the trial court and can
exercise any of the powers of the trial court and grant appropriate remedies. S. 80 CPA,
S. 11 Judicature Act.
Kamba Saleh Moses Vs Namuyangu Jennifer (ELECTION PETITION APPEAL NO.0027

OF 2011)
Held; Court of Appeal has all the powers, authority and jurisdiction of the High Court to deal
with the question of payment of the court fees for Election Petition No.18 of 2011 under Section
11 of the Judicature Act which provides: Court of Appeal to have powers of the court of
original jurisdiction
230
“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
Sinba K Ltd v UBC
Held; Court of Appeal derived the jurisdiction to cancel the said transfer under section 11 of the
Judicature Act which is clear. That the Court of Appeal has powers just like the High Court to
order for the cancellation of a sale once the court finds that it was illegal or fraudulent as it did in
the instant case.
 The role of the second appellate is not to re-evaluate the evidence in the manner required
of the first appellate court. Its role is restricted to ascertaining whether the first appellate
court complied with its duty of subjecting the entire evidence to a fresh and exhaustive
scrutiny and where it confirms that the first appellate court failed in its duty, the second
appellate court may reconsider the evidence and render an appropriate decision.
In Banco Arabe Espanol v. Bank of Uganda Supreme Court Civil Appeal No.8 of 1998; court
still adopted the position in Kifamunte regarding the role of the second appellate court. It stated;
In the same case the court also said: “It does not seem to us that except in the clearest of
cases, we are required to re-evaluate the evidence like a first appellate Court. On second
appeal it is sufficient to decide whether the first appellate court on approaching its task,
applied or failed to apply such principles: See D.R. Pandya v. R (1957) E.A.(supra)
Kairu v. Uganda [1978] HCB 123.” "This 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 certainty. We can interfere with the
conclusions of the court of appeal if it appears that in consideration of the appeal as a fist
appellate court, the court of Appeal misapplied or failed to apply the principles set out in
such decisions as Pandya (supra) Ruwala (Supra) Kairu (Supra).”
The Supreme Court found that the Court of Appeal failed in its duty, as first court of appeal to
subject the evidence in the case to that fresh scrutiny which the appellant expected it to do.
231
Held; This being a second appeal, this Court is not required to re-evaluate the evidence. That is a
duty of the first appellate court, which must review the evidence and consider the materials
before the trial. court. See Pandya versus R [1957] EA 336 and Okeno versus Republic
[1972] EA 32.
Even where the trial court has erred the appellant court will only interfere where the error has
occasioned a miscarriage of justice.
The second appellant court has no duty to re-evaluate the evidence of the trial court but will
consider the facts of the appeal to the extent of considering the relevant point of law or mixed
law and fact as raised in the second appeal. It may only interfere with the conclusion of the first
appellant court, if that court misapplied or failed to apply the principles set out in Pandya versus
R (Supra), Kairu vs Uganda (1978) HCB 123 and S.M Ruwale Vs R [1957] EA 570. The
above was the gist of the holding of the Supreme Court in Kifamunte Henry versus Uganda
(Supreme Court Criminal Appeal No. 10 of 1997).
 The third appellate court is only vested with the power to determine a question of law of
great public importance upon a certificate issued by the second appellate court or where
the second appellate court refuses by the third appellate court.
Bitamisi v Rwabuganda Godfrey
Held;
It suffices to note at this stage that in its determination of an application for a certificate
to lodge a third appeal to this Court, the Court of Appeal is guided by only two factors
namely: (i) whether the intended appeal to the Supreme Court concerns a matter of law of
great Public importance and (ii) whether the intended appeal raises a matter of law of
general importance.
232
However, the Supreme Court is not as restricted as the Court of Appeal to only these two
instances. Under Section 6 (2) of the Judicature Act, this Court can also grant leave, if in
its overall duty to see that justice is done, it is of the view that the appeal should be heard.
NB in the exam you must state the exact law that allows you to appeal.
APPEALS IN LC COURT
A fourth appeal could lie from LC1 Court to high court. That is from LC1, to LC 2, to LC 3, to
Magistrate grade 1 and to HC.
 The LC1 or village court, is by law a court of first instance in all matters where LC courts
have original jurisdiction. Where a person is aggrieved with the decision of the village
court such a person has an automatic right of appeal to LC2 court and any party
aggrieved with the decision of the LC2 has an automatic right of appeal to LC3 COURT
In Yona Mutala v Patrick Nantwaluma2 the appeal was lodged on the ground that the LCIII
court acted as a court of trial without the case going through LCI and LCII. The Chief Magistrate
held that the appeal would be allowed on that ground alone as the procedure was not adhered to
by the LCIII court. The proceedings were rendered a nullity and a fresh trial was ordered in the
ordinary Grade II Magistrate Court of the area.
 Where a party is aggrieved with the decision of the LC 3 court such a party has an
automatic right of appeal to the chief magistrate\s court.
LC courts Act of 2006

Do the LC\s exits read the constitutional court in Ruranga;
Both the appellant and the respondent were parties to Kalangala Parish L.C II court in Civil Suit
No.12 of 2009 in which the respondent was the plaintiff. The dispute was over ownership of a
kibanja (Customary land) in the same area. The suit was heard and judgment was given in favour
of the respondent. The respondent who was the successful party applied to the Chief Magistrate’s
court for execution of the judgment of the LCII Parish Executive committee court but the Chief
Magistrate dismissed the application contending that the LC II Court had no jurisdiction to
2
Civil Appeal No.32/1989 as cited in Jean Balya ; Popular Justice and Resistance Committee Courts in Uganda
page 52
233
entertain a matter of a civil nature as a court of first instance. The matter then went to the High
court by way of Notice of Motion and the High Court held that the LCII Court that had tried the
suit had original jurisdiction to do so.
The appellant being dissatisfied with the decision of the High Court she filed this appeal. The
application was brought under Sections 98 and 83 of the Civil Procedure Act and Order 52, Rule
1 of the Civil Procedure Rules as well as Sections 30 and 32 of the Local Council Courts Act
Cap 13 of 2006.
The main issue that was to be determined was the issue of Jurisdiction of LCII Court and
whether those courts had jurisdiction to entertain civil matters and land matters to be specific.
Held;
Section 50(1) of the Local Council Act, Act 13 of 2006 repealed the Executive Committees
(Judicial Powers) Act (Cap 8) while S.30 of the Land (Amendment) Act, 2004 introduced S.76 A
of the land Act which made The Parish or Ward Executive Committee Courts, courts of first
instance in respect of land disputes. Therefore those two pieces of legislation removed legal
jurisdiction from a village executive committee court to try and determine land disputes. The
Parish or Ward executive committee court was the court of first instance and not the village
executive committee. In cases of land, the LCII court had jurisdiction to hear and determine land
matters although local council courts established at the village level had no jurisdiction to try and
determine land dispute matters.
4. The judgment of the LC II Court from which this appeal emanated was delivered on 25th
April 2009 and by that time the Constitutional Court had made a decision which had far reaching
implications on the nature and legality of the village, parish or ward local council committees in
Ruranga Versus Electoral Commission and the Attorney General [2008] 1 E.A P. 387 that
decision had made orders which were to make several amendments a number of laws,
regulations and policies in respect of local council committees and local council elections. As a
result the elections of village, parish and ward councils which were under way did not take place
and these amendments were not yet done by the time the decision from which this appeal
emanated was made, that therefore meant that the decision was made by a court that was not
legally constituted at the time and so that decision was no decision at all as it was devoid of any
force of law.
The decision and orders of the L.C. II Executive Committee Court at Malongo, Masaka District
was accordingly set aside on account that the court was not legally in office as the elective term
234
of the members had expired. The parties were at liberty to institute fresh proceedings in a court
of competent jurisdiction if they wished so.
Additional evidence
 No evidence that was before the lower court can be admitted on appeal except where a
proper application to adduce additional evidence is heard and allowed by the appellate
court
In Banco Arabe supra
Held; The duty of the Court of Appeal to re-appraise evidence on an appeal from the High Court
in its original jurisdiction is set out in rule 29 Rules of the Court of Appeal as follows; “29(1) on
any appeal from a decision of a High Court acting in the exercise of its original jurisdiction, the
court may;
(a) re-appraise the evidence and draw inference of fact,
(b) in its discretion, for sufficient reason take additional evidence or direct that additional
evidence be taken by the trial Court or by commissioner.
APPEALS IN MAGISTRATE’S COURT AND FROM MAGISTRATE’S COURTS TO

HIGH COURT.
S.220 of the MCA O.43 of the CPR and S.79 of the CPA
Appeals from magistrate court to the High court
 An appeal lies as of right including interlocutory orders from a court presided over
Magistrate Grade two to the Chief Magistrate. The appeal is created under s. 220(1) of
the MCA. You cannot appeal from Grade 2 to Grade one.
Farncis Bwengye v Haki Bonera
Held; As far as the lower court was concerned, the dismissal of the application and the entering
of judgment for the respondent in the sum claimed in the plaint conclusively determined the
rights of the parties with regard to the matters in controversy in the suit. Following that decision,
the appellant had only one option: to appeal against both the dismissal of the application for
leave to defend and the resultant judgment in favour of the respondent/plaintiff. Under Section
235
220 (1) (a) of the Magistrates Courts Act, Cap.16, an appeal lies from the decrees or any part of
the decrees and from the orders of a Magistrate Grade I to the High Court. In these
circumstances, I have not appreciated learned Counsel’s argument that no leave was obtained by
the appellant before he filed the appeal. None was required.
Appeals from Chief Magistrate exercising appellate Jurisdiction.
 Where the Chief Magistrate is exercising appellate jurisdiction (in an appeal from a
decision of a grade two magistrate) under S. 220(1)(b) an appeal lies to the High court in
favor of any aggrieved party to the High Court subject to leave (its not automatic). This
means that the aggrieved party must first apply for leave to the Chief Magistrate and
where the Chief Magistrate refuses to grant such leave, the aggrieved party must apply
afresh for leave to the High Court. Note that you don’t appeal against refusal to grant
leave but you apply for leave afresh.
 The application for leave to appeal may be made informally before the Chief Magistrate
or formerly by notice of motion with a valid affidavit.
 S. 220(4); The application for leave has to be preferred before the Chief Magistrate first
within 30 days from the date of the decision of the Chief Magistrate inclusive of that
date. (day of decision is day No.1). Sometimes the decision is read by a Magistrate Grade
1 but in such instance you must make a formal application to the Chief Magistrate not the
G1 who read the decision of Chief Magistrate.
 Leave must be obtained from the relevant court and from the relevant judicial officer
mentioned by law.
Refer Guiliano V Claudio; obtained leave to file notice of appeal out of time from Court of
Appeal instead of SC. Held; As far as we are aware, the Justices of the Court of Appeal did not have
power at the relevant time, to hear applications for leave and or grant leave to file, in this Court, either a Notice
of Appeal or an appeal itself. And appeal was struck out.
 Where the appeal lies with leave, leave must be obtained before such appeal is preferred
in the High court.

Held;
Where leave is required to file an appeal and such leave is not obtained, the appeal filed is
incompetent and cannot even be withdrawn as an appeal.
236
to be struck out on that account
 Where the Chief Magistrate refuses to grant leave, the aggrieved [arty has to apply to the
High Court formally by a notice motion with a valid affidavit within 14 days from date of
refusal of the initial application by a Chief Magistrate. Once the CM refuses application,
the 30 days rescind and it is 14 days that apply.
 The application to the HC can only be preferred upon refusal by the CM to grant leave. In
the application, you must attach such refusal.
. Dr Ahmed Kisule V Greenland Bank in Liquidation and ors
Held;
Rule 3(1) of Order XLVI which provides for dismissal of an application for a review is not
included on the list under Order 44 rule 1 of orders from which appeal lie as of right. It therefore
falls under Order 44 rule 2 which lists the orders from which an appeal lie only with leave of
court. It follows therefore, that the applicant needed leave either from the High Court which
dismissed his application for review or from the Court of Appeal to which appeal against that
dismissal would lie if leave was granted.
 The applicant must found the application for leave on basically two grounds, namely, an
important point of law meriting adjudication by the HC, and (2) that the decision so made
has caused a substantial miscarriage of justice. 220(3)
Alley Route Ltd v UDB

Held; the principal upon which leave can be granted was stated in the case of Sango Bay Estates
Ltd & Others Vs Dresdner Bank AG (1972) EA 17 where the East African Court of Appeal held
that leave would normally be granted where prima facie it appears that there are grounds of
appeal which merit serious judicial consideration. At this stage Court should refrain from
considering matters which may in any way prejudge the issues which may rise at the appeal or
amount to a review of its own ruling. So it is not open to this Court to determine whether the
intended appeal would succeed or not. If the applicant has raised arguable grounds of appeal and
there are serious matters which merit consideration on appeal, and is not guilty of dilatory
conduct then Court should exercise its discretion and grant the applicant leave to appeal
Appeals from Chief Magistrate and Magistrate Grade 1 exercising original jurisdiction.
237
 The right of appeal from decisions, order or decrees rendered by magistrates court is
provided in 220 (1)(a) of the MCA. A person aggrieved with a judgment, decree or order
by a Chief Magistrate or Magistrate grade 1 exercising original jurisdiction has an
automatic right of appeal to the high court.
Francis Bwengye v Haki Bonera it was held that Under Section 220 (1) (a) of the Magistrates
Courts Act, Cap.16, an appeal lies from the decrees or any part of the decrees and from the
orders of a Magistrate Grade I to the High Court. In these circumstances no leave is required
before filing the appeal.
 However, in case of an appeal against an order, the right of appeal may be automatic or
subject to leave depending on the order in the CPR under which the application was
determined. S. 76 CPA provides for orders appealable as of right. Under S.76(h) an
appeal lies from orders made under the rules where the right of appeal is so described. If
the order was made under O 6 r 30(1) O 6 r 30(2) gives an automatic right of appeal. ). 44
r 1 gives a list of orders appealable as of right. If it is not in this list, you go to O.44 r 2
where you need leave.
Niwagaba and 4 ors v Owners of Condominium.
The Appellant sought Orders to set aside the Summary Judgment which was dismissed
by the Court. The Appellants aggrieved with the decision of the Trial Magistrate,
preferred this Appeal against the dismissal of Miscellaneous Application No. 21 of 2013.
Whether the Appellant can appeal as of right?
Held; per Hon. Lady Justice Elizabeth Ibanda Nahamya.
Pertaining to the issue of whether the Appellants have a right of Appeal, I would
conclude that this Appeal lies against the dismissal in Miscellaneous Application No. 21
of 2013 which falls within Order 36, rule 11 of the CPR. Hence, the Appellants have no
automatic right of Appeal. (See Attorney General vs. Shah [No.4] [1971] EA 50).
Section 76 of the Civil Procedure Act provides for the particular instances upon which an
appeal shall lay as of right or by leave of Court. Order 44 of the CPR also enunciates on
the orders of Court upon which an Appeal may lie as of right and the Orders relating to
setting aside of an Ex parte Judgment on a Specially Endorsed Plaint are excluded from
the provision.
She then concluded;
238
Order 44, rule 1 of the CPR which specifies orders from which Appeals lie as of right
does not include orders made under Order 36 of the CPR. The original suit and
subsequent Miscellaneous Application to set aside the Summary Judgment was
brought under Order 36 of the CPR. Thus decisions made under Order 36 are not
appealable as of right under Order 44 rule 1. Leave ought to be sought under Order
44, rule 2 to Appeal against a decision made under Order 36. (Emphasis added)
The position of the law is now settled. Where leave is required to file an Appeal and such
leave is not obtained the Appeal filed is incompetent and cannot even be withdrawn. It
must be struck out.
Alley Route v UDB where Counsel for the Respondent applied for leave to appeal against the
ruling. It was held that the application was brought under Order 41 rules 1, 2 and 9 of the CPR
hence required no leave of Court under Order 44 rules 1(I), (q) CPR before an appeal there from
can be filed. Thus there was no need for this application.
 An application for leave may be made informally before the Chief Magistrate or
Magistrate Grade 1 depending on whose order you are appealing against or by notice of
motion and where the Chief Magistrate refuses the application, a fresh application for
leave should be made to the High Court.
Dr. Sheikh Ahmed Mohammed Kisuule v GreenLand Bank (In Liquidation) (( In

Liquidation)) [2011] UGSC
The appellant applied for review of a decision but his application was dismissed. He then
appealed to the Court of Appeal which also dismissed the appeal, and he made a second appeal
to the Supreme Court. Counsel for the respondent contended that the appellant contravened the
provisions of Order 44 rules (1) and (2) of the Civil Procedure Rules when he did not seek leave
from either the High Court or the Court of Appeal against the order of the High Court, which
dismissed his application to review the judgment in HCCS No 469 of 2001. According to
counsel, obtaining leave to appeal from either the High Court or the Court of Appeal is
mandatory before one can appeal against an order dismissing an application for review of a
judgment.
HELD; in dismissing the appeal for want of leave;
It is unfortunate that the learned Justices of Appeal did not all refer to this objection in
their judgment. A perusal of Order XLIV (1) lays down orders from which appeals may
be made as of right. Rule 2 of the same order provides as follows:
"An appeal under these Rules shall not lie from any other order except with leave of
the court making the order or the court to which an appeal would lie if leave were
239
given",
Where application for review is rejected under Order XLVI Rule 3(1) that is not included
among the orders where an appeal may be made as of right.
It is, therefore, obvious that Order XLIV Rule (1) refers to the order allowing review of
the judgment and not otherwise. In case an application for the review of the judgment is
refused the dissatisfied party has to seek for leave before filing an appeal. Rule 3 provides
that the application for leave must be made first to the court which made the order sought
to be appealed. According to the record of appeal there is no evidence on record that an
application for leave to appeal to the Court of Appeal was made in the High Court.
Additionally, where leave is required to file an appeal such leave is not obtained the
appeal filed is incompetent and cannot even be withdrawn as an appeal. See Makhangu
Vs Kibwana [1995-1998]. 1 EA 175. It is not a merely procedural matter but an essential
step envisaged by Rule 78 of the rules of this court.
In the instant appeal no genuine steps were taken to apply for leave to appeal either in the
High Court or in the Court of Appeal. Consequently there was no competent appeal
before the Court of Appeal. Similarly there is no competent appeal before this court.The
appeal was struck out.
 Where the application for leave is preferred, the applicant must satisfy court that there is
an important questions of law meriting adjudication by court or a substantial miscarriage
of justice results or has resulted from an order.
Alley Route ltd v UDB

appeal which merit serious judicial consideration.
 Where the leave to appeal is granted an order must be extracted and filed together with
the record of appeal.
Beatrice Kobusingye v Phiona Nyakana.
Procedure
1. The intending appellant ordinarily has the obligation to extract a decree, or order cause it
to be signed and sealed and also request for proceedings to be prepared, certified and
availed from the judgment or ruling of the trial court.
Abaho Tumushabe V Stanley Beineababo
240
Held: S.232(1)(a) Magistrate Courts Act requires that an appeal must be from a decree, that at
the time the appeal is lodged, a decree appealed from must be in existence. O.18 r7 (now O.21 r
7) puts the duty of extracting a decree on the successful party. It was therefore erroneous for the
respondent to argue that the intending appellant has the duty to extract the decree.
Haji Muhammed Nyanzi Ali Segne
Held; that 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 applicant's lawyers prepared the decree which
gave wrong dates, they have themselves to blame, especially so if they left it to the court to do.
In the instant case, the appellant failed to prove that at any time he applied for a copy of the
decree (not even the judgment and proceedings). He had no proof of date of receipt of the decree.
He ought to have filed his appeal latest on, 29th November, 1986 i.e. thirty days after the date of
judgment. Instead he-filed it' on 3rd December, 1986. It was thus filed out of time. He did not
apply for, let alone, obtain leave to file out of time. Application struck out.
 Previously failure to extract a decree was fatal to the appeal.
Sarah Kintu v Jjombwe Ssebaduka (CIVIL APPEAL NO. 025 OF 2011)
Held; Further under section 220(1) (a) of the Magistrate’s court Act cap 16 laws of Uganda, it is
provided that an appeal from the Chief Magistrate Court or Magistrates Court Grade one is from
the decree or order from the decision of the trial Court. I have perused the Court record it does
not indicate that the appellant extracted the decree or order before preferring an appeal. This is
fatal to the appellant’s appeal. In the case of Kiwege and Mgude Sisal Estates Land vs Manilal
Ambala Nathwani Civil Appeal No. 69 of 1952 Court of Appeal for Eastern Africa;
Alexander Morrison vs Mohmmedrasa Suleman and another Civil Appeal No. 88 of 1952
Court of Appeal for Eastern Africa. W.T.N. Kisule vs V. Nampera Civil Appeal No. 110 of
1982 and Robert Biiso vs May T. Tibamwenda reported in [1991] HCB 92, it was held that
“an Appeal to the High Court must be against a decree which must be extracted and filed
together with memorandum. Failure to extract a formal decree before filing the appeal was a
defect going to the jurisdiction to the Court and could not be waived.
The appellant’s actions have contravened the above provisions of the law”.
 However, the current legal position is that it is not a mandatory requirement to extract a
decree before preferring an appeal to the High Court
241
Tumuhairwe Lucy v the Electoral Commission.
Held;\
After due consideration of the arguments on the point, this court’s takes the view that, indeed,
the duty to extract a decree in the magistrates’ courts lies with the court, in accordance with O.21
r.7 (3) CPR. It provides as follows: “In a magistrate’s court, the decree shall be drawn up and
signed by the magistrate who pronounced it or by his or her successor.”
This position is well supported in Mbakana Mumbere v. Maimuna Mbabazi, HCT-01-CV-CA-

003-2003 per Lameck N Mukasa, J.; where the learned Judge; citing the decision in Banco
Arabe Espanol v. Bank of Uganda (1996) HCT 12 in which the court, after holding that the
decree was not properly extracted as required by law, reiterated the position in Kibuuka Musoke
William & A’nor v. Dr. Apollo Kaggwa, App. No.46 of 1992 that:
“…It is clear from the above provisions that the extraction of a formal decree
embodying the decision complained of is no longer a legal requirement in the
institution of an appeal. An appeal by its very nature is against the judgment or a
reasoned order. The extraction of the decree was therefore a mere technicality which the
old Municipal law put in the way of intending appellants and which at times prevented
them from having their cases heard on merits. Such a law cannot co-exist in the context
of the 1995 Constitution Article 126 (2) (2) (e) where the courts are enjoyed to
administer “substantive justice without undue regard to technicalities.”
Clearly, a decree is simply a summary of the court’s decision as to the rights of the parties in
controversy. It is in view of these legal stipulations that this fully endorses the position in
Mbakaina Mumbere case (supra) that an appeal against a decree is, in the real sense, an appeal
against the judgment.
The effect is that lack of a properly extracted decree is a mere technicality that would not be a
ground to strike out a memorandum of appeal duly filed in court; a position in keeping with the
spirit and letter of Article 126(2) (e) of the Constitution that substantive justice is done without
undue regard to technicalities
William Kisembo and Anor V Kiiza Rwakaikara
Held; this 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
577 held that it is no longer a requirement to accompany the appeal with a formal order or
extracted decree. 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
242
[1999] KALR 762. For the above reasons I overrule the objection raised by the respondent for
lack of merit
The same position was held in Henry Kasambwa v. Yakobo Rutarihamba HCCA No. 10 (1989),
and Nawemba Suleiman v. Bwekwaso Magenda (1989) HCB 140. That extraction of a decree is
a good practice but not a mandatory requirement. That as long as you have a judgment you may
not need to extract a decree to appeal.
2. An appeal to the High Court is preferred by a memorandum of appeal containing the

grounds of appeal and duly signed by counsel for the appellant.
O. 43 r 1; 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
3. It is not a requirement to lodge a notice of appeal either in the magistrate’s court or the
High court as a notice of appeal does not commence an appeal from the magistrate’s
courts to the High court. However, a notice of appeal is required when it is from the High
Court to the Court of Appeal.
Buso Foundation Ltd V Mate Bob Phillips

Held; “an appeal is by filing a memorandum of appeal not by a notice of appeal in a magistrate
court ”
That appeals to the High Court, are governed by the clear provisions of O. 43 C.P.R. and S. 79 of
C.P.A. In both provisions, there is no mention requiring the appellant to copy and serve the letter
to the lower court requesting for the decree/order and the proceeding to enable it prepare his
appeal. He might do it as courtesy but not as a legal obligation.
In Sekyali v Kyakwambala, it was held that an appeal in the High Court is instituted by a
memorandum and not notice of appeal.
4. The intending appellant normally files the proceedings inclusive of judgment by formal
letter to the trial court to enable him or her prepare for the grounds for appeal.
In Nawemba Sulaiman V Byekwaso it was held that it would be anomalous for a party to be
required to file a memorandum of appeal before obtaining or having access to the lower court
record.
 The question that arises is whether it is a mandatory requirement to serve the letter
requesting for proceedings on the opposite party or counsel.
 In the context of an appeal from the magistrate court to High Court service of such a
letter is not a mandatory requirement but a rule of courtesy and prudent practice and
failure to do so does not render the appeal fatally defective [it is a mandatory requirement
for appeals from High court to Court of Appeal and Court of Appeal to Supreme Court]
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Held; that appeals to the High Court, are governed by the clear provisions of O. 43 C.P.R. and S.
79 of C.P.A. In the premises there is no legal requirement for the appellant to copy and serve his
request to the lower Court’s for the decree/order and proceedings to the respondent in appeals to
the High Court. He could however as a matter of courtesy copy the same to the respondent.
In Sekyali v Kyakwambala, it was held that there is no requirement for an appellant to serve a
respondent with the letter seeking a record of proceedings
 The purpose of the request for proceedings is to enable the intending appellant to obtain
satisfied copies of the proceedings and judgment and prepare a memorandum of appeal.
 A memorandum of appeal must be lodged in the High Court (the relevant Registry)
 A memorandum of appeal must be lodged within 30 days from the date of the decision of
the trial court. S.79.
S. “ 79. CPA (1) Except as otherwise specifically provided in any other law, every
appeal shall be entered –within thirty days of the date of the decree or order of the
court 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 this section has
elapsed.
In Buso Foundation ltd v Bob Mate Phillips it was held that an appeal which was filed 3
months from the date of the lower court’s decree prima facie offended the 30 day rules
prescribed by S. 79 (1) of C.P.A
Sarah Kintu v Jjombwe Ssebaduka (CIVIL APPEAL NO. 025 OF 2011)

HELD;
The laws concerning lodging of appeals from the lower Courts to the High Court are Order 43
rule 1 of the Civil Procedure Act, which provides that an appeal shall be commenced by a
memorandum of appeal; and Section 79 (1) (a) of the Civil Procedure Rules , Cap. 71 which
provides that an appeal shall be entered within thirty (30) days of the date of the decree or order
of the Court. In the instant appeal, the appellant commenced the appeal with a notice of appeal;
and filed the memorandum of appeal on 5th August 2011 which is far beyond the described time
by law within which to file an appeal. Definitely, therefore, this appeal was filed out of time.
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 Where the appeal (memorandum of appeal) is not filed within the requisite time, the
remedy available to the appellant is to seek for extension of time within which to appeal.
Orient Bank v AVI ENTERPRISES LIMITED
Held; In the case of Crane Finance Company Ltd versus Makerere Properties Ltd Civil
Appeal number 11 of 2001 the appeal was filed out of time. The Supreme Court in that case
considered its discretion to extend time under rule 4 of the Rules of the Supreme Court:
"The Court may, for sufficient reason extend the time limited by these rules or by any
decision of the Court or of the High Court for the doing of any act authorised or required
by these rules, whether before or after the expiration of the time and whether before or
after the doing of the act; and any reference in these rules to any such time shall be
construed as a reference to the time as so extended."
The Supreme Court held that the rule envisages extension of time with the effect that it would:
“...bring the act within the time as so extended. There would have been no reason to
include that scenario in the rule, if an act did out of time was an incurable nullity.
The Supreme Court agreed with the decision in the East Africa Court of Appeal in Shanti vs.
Hidocha (1973) EA 207 that extension of time for filing validates or excuses the late filing of
documents.
TIGHT SECURITY LTD v CHARTIS UGANDA INSURANCE
The decision of the court delivered on 1 March 2013. Consequently the appellant applied
through counsel to be availed a certified true copy of the record of proceedings and judgement to
enable them take appropriate action. More than one month later a decree was extracted by the
Respondents lawyers and is signed by the Chief Magistrate on 3 April 2013. The copy of the
decree on the court record shows that the Appellant's lawyers received the decree on 5 April
2013. Thereafter the Appellant again applied on 22 April 2013 for a copy of the record of
proceedings. Yet the Appellant's Counsels filed a memorandum of appeal and lodged it on the
court record on 20 June 2013.
Held;
Madrama;
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The conclusion is that an application for the record of proceedings upon which the decree
or order is founded cannot be made after the period of limitation of 30 days has expired.
Secondly an application for the record of proceedings has to be made within 30 days or at
least before expiry of the limitation period. Thirdly the period of limitation for purposes
of an application for a record of proceedings has to be reckoned from the date of
judgment to avoid a situation where an application is made by the intending Appellant
after expiry of the limitation period. It is clearly the intention of Parliament that time of
limitation begins to run from the date of judgment until and unless it is necessary for the
record to be availed. The record cannot be availed in every case but in cases where there
is an intention to appeal against the order or decree of the Chief Magistrate or Magistrate
Grade 1. The only way the lower court can be aware of an intention to appeal against the
decree or order is through an application for the record of proceedings made before the
expiry of the limitation period. Secondly the court can be made aware after lodging the
memorandum of appeal under Order 43 rule 1 and 10 of the Civil Procedure Rules when
the High Court sends a notice of lodgement of the appeal. Where the limitation period has
expired before an application for a record of proceedings has been made, it is necessary
to apply for extension of time within which to lodge the appeal. Lastly where an
application has been made for the record of proceedings, time does not begin to run for
purposes of the limitation periods under section 79 (1) (a) of the Civil Procedure Act and
under the provisions of section 79 (2) of the Civil Procedure Act until after a copy of the
decree or order appeal against and of the proceedings upon which it is founded has been
prepared and availed to the intending Appellant.
In this case the decree was availed to the Appellant who ought to have lodged an appeal
within 30 days from 5 April 2013. Thereafter the Appellant was at liberty to apply for
copies of necessary documents at their own cost. The memorandum of appeal was lodged
on 20 June 2013 about 45 days out of time reckoned from the date of the decree or
availing of the decree to the intending appellant.
In the premises I agree with the Respondent’s Counsel that the Appellant's appeal is
incompetent for the reasons set out above the appeal is accordingly struck out with costs
 The application for extension of time is lodged in the High Court by notice of motion
with a supporting affidavit explaining why the appeal was not lodged in time.
Margaret Musango v Francis Musango it was held that the court has the discretion to enlarge
time for filing an appeal out of time even when the application is not made until after the
expiration of the time allowed provided there is good cause. However, an application for such
enlargement of time was to be made by notice of motion and heard in open court.
 S.220 provides that the appeal lies from a decree or order and S.79 suggest that the time
starts running from the date of the decree or order.
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Buso Foundation Ltd V Mate Bob Phillips; held that under S.79 appeal must be lodged within
thirty days of the date of the decree or order of the court.
 The 30 days within which the appeal must be lodged do not start running until such
proceedings are availed. S. 79(2)
In the case of Godfrey Tuwangye Kazzora v. Georgina Kitari Kwenda (1992-93) HCB 145, it
was held that:
“The time for lodging an appeal does not begin to run until the appellant
receives a copy of the proceedings against which he or she intends to
appeal.
In this case the application for leave to appeal out of time was filed before proceedings in
the lower court had been typed and secured by the appellant or his lawyer.

Held;
S. 79 (2), of C.P.A. excludes the time taken by the Court to supply the lower Courts proceedings
and order/decree sought to be appealed from
In the instant case, the respondent requested for the lower Court’s proceedings on the 18/5/2009.
The Court received that request on the 22/5/2009. The proceedings were certified on the
28/7/2009 and the Memorandum of Appeal was received in Court on the 18/08/2009. All this is
in the affidavit in reply and there is no affidavit in rejoinder challenging these averments, hence
they are to be taken as uncontested by the applicant. The total sum of the above is that, the
respondents appeal was lodged in time by the Memorandum of Appeal filed on the 18/08/2009.
The time between the 15/5/2009 and 18/08/2009 is to be excluded under S. 79 (2) C.P.A.
In Haji Mohamed Nyanzi v Ali Segne (1992-93) HCB 218 it was held that Under S. 80(1) of
the Civil Procedure Act (now 79) every appeal shall be entered within thirty days of the date of
the decree or order of the court, and the time taken by the court or registrar in making a copy of
the decree or order appealed against and the proceedings upon which it is founded shall be
excluded."
In Sekyali v Kyakwambala, it was held that Section 79(1)(a) of the CPA provides that civil
appeals shall be instituted within 30 days from the date of the decree or order appealed from.
Section 79(2) of the same Act provides for due consideration to be given to the time taken by the
lower court in making a copy of the decree or order appealed against, as well as the record
thereof, in computing the period of limitation. The inference drawn from this provision is that
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time of limitation starts to run from the date the decree or order appealed from, and record of
proceedings are availed to the intending appellant. This legal position was well conceded by
both parties in the present application.
 Where the proceedings are availed the appeal is lodged in the High court in form of a
memorandum of appeal under O.43.r1
In Okia Joseph v Igira Lawrence, it was held that appeals are originated by filing a
memorandum of appeal under O.43 r. 1 of the Civil Procedure. That it would be anomalous for a
party to be required to file a memorandum of appeal before obtaining or having access to the
lower court record.
 The memorandum of appeal must be signed by the appellant or counsel for the appellant
and should be lodged in the registry of the relevant division of the High court and it must
be signed and sealed by the registrar of the High court. Note that the relevant court fees
must be paid for the memorandum of appeal.
 The appellant should serve the memorandum of appeal on the respondent or respondent’s
counsel.
Sekyali v Kyakwambala With regard to the alleged non-service of the memorandum of appeal
on counsel for the applicant, court ordered that counsel for the appellant serve opposite party
with his memorandum of appeal forthwith, and the appeal proceed to be heard on its merits.
 The memorandum of appeal should be served within 21 days from the date of filing.
 The intending appellant will then request the registrar of the High court to cause the file
containing the original proceedings to be delivered to the High court so that the appeal
may be fixed for hearing.
 When the proceedings are dully typed, satisfied and the original file forwarded to the
High court, counsel for the appellant normally prepares a record of proceedings upon
which the appeal is to be argued. This is not a mandatory requirement but prudent
practice
Kazina v Samalie Nasali
The contention of the Respondent is that she was not served with the appeal documents sufficient
to enable her to prepare her defence to the appeal within a reasonable time. The Respondent’s
Counsel submitted that no certified copy of the order appealed against is attached to the appeal
but instead the Respondent was served with new and uncertified copies of agreements, letters
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and e-mails which did not feature in the original action. There is no certified copy of proceedings
or a certified copy of the ruling attached to the appeal.
Held’
There is no statutory requirement to attach the record of proceedings, the orders, taxation
certificate etc to the affidavit in support of the chamber summons. The contention that it is
necessary to include the order, decree, taxation certificate or ruling has no basis under the rules
which are applicable to appeals from taxation decisions
Sekyala v Kyakwambala
Held; With regard to the alleged non-service of the memorandum of appeal on counsel for the
applicant, court ordered that counsel for the appellant serve opposite party with his memorandum
of appeal forthwith, and the appeal proceed to be heard on its merits
William Kisembo v Kiiza Rwakaikara.
Hellen Obura J; I have perused the entire Order 43 of the Civil Procedure Rules which governs
appeals to this Court. I noticed that under those rules an appellant is not required to file a record
of appeal as contended by the respondents. Order 43 rule 10 is instructive on this matter. It
provides:
“10. High Court to give notice to court where decree appealed from.
(1) When a memorandum of appeal is lodged, the High Court shall send notice of the
appeal to the court from whose decree the appeal is preferred.
(2) 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.”
My understanding of rule 10(2) above is that it 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 and so I do not know
the basis of the respondent’s contention.
 The record of appeal should as a matter of prudent practice be served on the respondent
or counsel for the respondent.
 There after the intending appellant should apply to have the appeal fixed for
hearing.(extract hearing notices to be served on the other party
Look at.
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O43 r4
(1) An appeal to the High Court shall not operate as a stay of proceedings under a decree or
order appealed from except so far as the High Court may order, nor shall execution of a decree
be stayed by reason only of an appeal having been preferred from the decree; but the High Court
may for sufficient cause order stay of execution of the decree
S.98
Held; that an application for an interim injunction is not an application on the merits but meant
to preserve the right of appeal or the right of hearing on the merits which right may be curtailed
if the status quo is changed. It would be strange for a judge to consider the grounds for granting
an injunction and at the same time after ruling on the same, consider the merits of the main
application on the same grounds.
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 a very limited jurisdiction which does
not deal with the merits of the suit. Hence it is normally handled by the Registrar. The principles
for preserving the right of appeal or the rights of hearing were stated in the case of Wilson V.
Church (1879) vol 12 Ch D 454 where it was held that:
As a matter of practice, where an unsuccessful party is exercising an unrestricted right of

appeal, it is the duty of the court in ordinary cases to make such order for staying
proceedings in the Judgment appealed from as will prevent the appeal if successful from
being rendered nugatory.”
This holding was approved and followed in the Supreme Court case of Somali Democratic
Republic V. Anoop Sunderial Trean C.A.C.A No 11 of 1988 before Manyindo DCJ Odoki
J.S.C and Oder J.S.C. The Supreme Court held that where an unsuccessful party is exercising a
right of appeal, it is the duty of the appellate court to prevent the appeal from being rendered
nugatory. The Supreme Court quoted Cotton Lord Justice at page 458 of the case of Wilson vs.
Church (Supra) where he held that the court would order a stay of execution in order to preserve
the applicants right of appeal so that it is not rendered nugatory. At page 459 of the same case
Bret Lord Justice held that the law is that court will exercise its discretion so as to stop an appeal
from being rendered nugatory
APPEALS FROM ORDERS OF REGISTRAR OF THE HIGH COURT
There are two forms of appeals from orders or registrars of the High Court.
 Firstly, an appeal lies as of right from an order of the registrar to the High Court Judge
under O. 50 r.8
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In Royal group of Pakistan v Mavid Pharmaceuticals Order 50 rules 8 of the Civil Procedure
Rules gives a right of appeal to any person aggrieved by any order of the registrar of the High
Court.
 The procedure of the said appeal is a notice of motion with a valid affidavit in support. O.
50 r 8; The appeal shall be by motion on notice.
 The appeal only arises from orders of registrars arising out of the exercise of their powers
Under the CPR as well as practice directions No.1 of 2002
 The appeal must be lodged in the High court within 7 days from the date of the order. S
79 CPA provides that every appeal shall be entered— (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 this section
has elapsed.
Kazina v Samalie Nassali
Held; An appeal from any other decision of the registrar is commenced within seven days from
the order of a registrar. The appeal is within the High Court i.e. from a registrar of the High
Court to a judge of the High Court. It is not an appeal from a tribunal or Magistrates Court to the
High Court for which Order 43 of the Civil Procedure Rules may apply.
 The order under 50 r 8 must be distinguished from a reference under O. 50 r 7. The

reference alluded to is by the registrar to a judge seeking directions on any matter
pending before the registrar.
Byamugisha v NSSF
Held; It was held that the registrar cannot refer a matter in which she has already ruled and that
court cannot give any directions to the registrar on a matter in which she has already ruled. It is
upon any party who is aggrieved to appeal or apply for extension of time within which to appeal.
 A second appeal lies from a taxation order or decision by the registrar as a taxing master
to a judge of the high court. The appeal is provided for in S. 2 of the Advocates Act.
 The appeal must be filed by chamber summons with a valid affidavit in support.
 That appeal must be lodged within 30 days from the date of the decision or order of the
registrar.
Kazina v Samalie Nassali
 Held; An appeal from any other decision of the registrar is commenced within seven
days from the order of a registrar. However the Advocates Act section 62 thereof
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provides for a period of 30 days. The appeal is within the High Court i.e. from a registrar
of the High Court to a judge of the High Court. It is not an appeal from a tribunal or
Magistrates Court to the High Court for which Order 43 of the Civil Procedure Rules
may apply
 Where the appellant is unable to file the appeal within time, such appellant may apply for
extension of time provided there is proof of sufficient cause.
Orient Bank v AVI Enterprises ltd
The first objection is that the chamber summons by which the appeal was commenced had been
served out of time after the summons had expired.?
Court found that the chamber summons had indeed expired by the time it was served. It was
served outside the period prescribed. It was held where an appeal has not been served within
time, the appellant could have sought leave of court to serve the appeal out of time. Because the
applicant has not sought the leave of the court to extend time within which to serve the chamber
summons or to seek an order validating the service of the chamber summons after expiry thereof,
the Respondent’s first ground of objection succeeds.
APPEALS FROM ORDERS AND DECREES OF THE HIGH COURT TO THE COURT
OF APPEAL:
 The Court of Appeal is deemed to be duly constituted to hear an appeal if presided over
by a panel of three justices of the Court of Appeal. This should be distinguished from the
Constitutional Court which is presided over by a panel of 5 justices of that court.
Murisho v AG and IGG.
Held; The Court of Appeal is not the Constitutional. The courts are different and distinct.
Whereas the Court of Appeal has only appellate jurisdiction, the Constitutional Court has
original jurisdiction. The coram for each of the courts is constituted differently. Their respective
mandate also differ.
 The constitution of the court of appeal is a creature of the Constitution and the Judicature
Act and the coram must subsist throughout the hearing of the appeal up to delivering of
the decision.
Geofrey Komakech and anor v Rose Akol and 2 Ors
The Court record shows that the Court was in a full coram in that there were three justices during the
hearing of the application to strike out the appeal. Judging from the contents of the main ruling striking
252
out the appeal, there appears to have been agreement among the three justices constituting the Court to
strike out the appeal. However, the third learned Justice of Appeal declined to sign the main ruling
apparently because of the order as to who should pay the costs. However she did not give her own
dissenting ruling as required by Rule 33(6) of Court of Appeal Rules. She also declined to participate in
the subsequent hearing on costs because she disagreed as to who should pay costs.
HELD; there is no doubt that there was no coram when the hearing and final decision on costs was made.
The order as to payment of costs is obviously incompetent. Also her refusal to sign the main ruling and
her absence from the hearing on costs rendered the ruling / order of the court incompetent. That the ruling
by the Court of Appeal is a nullity because it lacked Coram during hearing and decision
Mohamed Hamid V Roko Construction.
Mr. Musoke’s major contention on the 3rd ground is that the decision of the Court of Appeal offended the
Rules of Natural Justice. Learned counsel contended that the Coram of the Court of Appeal which decided
the appeal was different from the one that had heard the appeal in that the Coram which decided the appeal
included his Lordship Justice Nshimye, JA., who never participated personally at all in the hearing of the
appeal.
Held
Clearly, therefore, in a legal system and tradition in which Justice must not only appear to be done but must
be seen to be done properly and impartially, the appearance on record of a Justice who never personally
participated in the hearing raises genuine concern about the fairness and propriety in the decision of the
Court.
The rules require that a judge who never participated in the hearing may deliver a judgment or ruling which
has been written and signed by the judges who actually heard and decided the matter. The effect of this
Rule is to ensure that it is the Justices who hear the appeal or an application who must decide and put their
decision in writing and sign the same. This is indeed intended to minimize or prevent possible fraud and to
ensure that written judgments and or rulings reflect accurately what those who heard the matter decided.
In our opinion it is improper and contrary to natural Justice for a stranger to the hearing to decide and sign a
purported judgment or ruling. Fair hearing and the need to exercise propriety and impartiality require that
the panel which heard the appeal must be the same one which decides, writes and signs the judgment or
ruling before it is delivered.
In our view and with the greatest respect to the Court of Appeal we hold that the Court did not follow
permissible proper procedures in deciding the appeal and, therefore, grounds one and three must
succeed. The proper procedure is to allow the appeal, set aside the orders of the Court of Appeal and
return the matter to the Court of Appeal for that Court to constitute a suitable different Coram to hear
and decide the appeal in accordance with the established procedures.
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 A right of appeal to the Court of Appeal is a creature of the Constitution, Judicature Act
and any other Act that creates such a right.
Roko Construction v Mohamed Hamid
Held; The legal principle is that there is no right of appeal against a decision of a court of
competent jurisdiction unless that right is expressly provided for. The right to appeal is a
creature of statute. It cannot be given by mere implication.
Babcon Uganda Ltd v Mbale Resort Hotel
whether the application to the High Court under S. 34(I) of the Arbitration and Conciliation Act
is adjudicated upon by the High Court in exercise of its original jurisdiction as envisaged in
Section 6(I) of the Judicature Act and if so (2) whether the dissatisfied party has an automatic
right of appeal to the Supreme Court.
Held; The appellant have no automatic right of Appeal to Supreme Court. The right of appeal
was specifically barred by S. 9 of the ACA which provides for the extent of Courts intervention
as follows:- Except as provided in this Act no Court shall intervene in matters governed by
this Act
 An appeal lies from decisions of the High Court to the Court of Appeal if such decisions
were made under the provisions of the Judicature Act. Do not appeal under the CPA
because the Court was created under the Judicature Act. S.10
Pius Niwagaba v LDC
The issue in this application seemed to be whether or not there is a law which creates a right of
appeal from the decisions of the High Court to the Court of Appeal against prerogative orders
of certiorari, mandamus and prohibition.
Held;
The Court agreed with both counsel in their submission that appellate jurisdiction is a creature
of statute. Section 36 of the Judicature Act empowers the High Court to issue orders of
certiorari, mandamus and prohibition. The right of appeal in prerogative orders under Section
36 is provided for in Sections 10 and 66 of the Judicature Act and of the Civil Procedure Act
respectively. These two Sections have the same effect thus; the Court of Appeal has the
jurisdiction to hear appeals from decisions of the High Court. Therefore, where an order is
made by the High Court on a matter brought to it by some statutory provisions and not the Civil
Procedure Act or Rules, that order is appealable as of right unless the appeal is specifically
254
excluded by some special legislation. The decisions so made by the High Court under Section
36 of the Judicature Act are, therefore, appealable to the Court of Appeal.
The Court of Appeal in Makula International Ltd vs His Eminence Cardinal Nsubuga and
Another [1982] HCB 11, held that when an order is made by the High Court on a matter
brought before it by some to statutory provision other than the Civil Procedure Act or Rules, it is
appealable as of right, unless the appeal is specifically excluded by law.
Similarly in Dennis Bireje v Attorney General;
Held; Section 10 of the Judicature Act provides for the jurisdiction of the Court of Appeal in the
following terms; - “10. Jurisdiction of the Court of Appeal. An appeal shall lie to the Court
of Appeal from decision of the High Court prescribed by the Constitution, this Act or any
other law.”
We appreciate Mr. Matsiko’s argument that sections 10 of the Judicature Act and 66 of the Civil
Procedure Act create a right of appeal from decisions given by virtue of section 36 of the
Judicature Act. In our view, Section 10 ‘if the Judicature Act, means that once any law
prescribes that a decision is made by the High Court, then that decision is appealable to this
court. Section 36 empowered the High Court to issue orders of mandamus, prohibition and
certiorari. In our view, those are decisions “prescribed” by law within the meaning of section 10
of the Judicature Act.
Appeals from decrees
 An appeal lies from decrees and orders of the High Court in exercise of its original
jurisdiction to the Court of Appeal. This is provided for under S. 66 of CPA.
 An appeal equally lies from an ex-parte decree of the High Court to the Court of Appeal.
S. 67(1) CPA
 There is no right of appeal from a decree of the High Court entered by consent of the
parties to the Court of Appeal. S.67(2). You apply for review and can appeal the review
decision.
Wasike v Wamboko [1976–1985] 1 EA 625 Held; It is clear from section 67(2) of the Civil
Procedure Act that no appeal can lie from a consent judgment. However court went further to
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emphasise that, the decree envisaged by that provision is doubtless a valid decree regularly
entered and obtained without circumstances of fraud or mistake or misrepresentation;
 Where an appeal from the High Court to the Court of Appeal is a second appeal, the
appeal must be restricted to questions of law or mixed law and fact. S. 72 and 73 of CPA
 All appeals from decrees of the High Court are as of right to the Court of Appeal. A
decree is defined as a formal expression of a judgment, S. 2 CPA. A decree is a summary
of the orders of the judges. O. 21(7)(1,2). It is important to extract the decree, though its
not mandatory.
Dorothy Nakimbugwe v John Kayondo
The applicants filed a suit with respect to a suit land and also applied for a temporary injunction
to maintain the status quo. The trial judge while considering the application for a temporary
injunction, instead went ahead to hear the suit and dismissed it for failure to disclose of action.
On appeal against the decision, counsel for the respondent argued that the decision amounted to
an order and not a decree hence the appeal was incompetent for failure to obtain leave since the
order under which the suit was dismissed is not provided for under O. 44(1).
Whether the decision of the judge was an order or a decree?
Held; the judge determined the case on its merits without affording the partisan opportunity to
be heard. The form of expression that he used conclusively and finally determined the rights of
the parties with regard to the matters that are in controversy in the suit. It was not a mere
rejection of the plaint. Therefor the decision of the trial judge amounted to a decree and not an
order. The respondents were therefore entitled to appeal as of right without first seeking leave of
court.
Wanendeya William v Stanbic Bank…
The trial judge decided the suits on a preliminary point of objection and dismissed them. The
plaintiff filed a fresh suit which was objected to as res judicata.
Held; court found that the decision in the suit was a final decision that disposed of the suit
wholly, and amounted to a decree. In such circumstances it is sufficient to raise the bar of res
judicata as it has wholly disposed of the matters in issue in that suit. The option for plaintiff at
that stage, if dissatisfied, was to appeal against the decision, and not file another action. Court
quoted the decision of the Court of Appeal for East Africa in South British Insce Co. Ltd v
Mohamedali Taibji Ltd [1973] E.A. 210 on appeal from Kenya. In the trial court the judge struck
out the plaint for disclosing no cause action. The plaintiff appealed against that decision which
had been extracted as ‘Order’. On appeal it was argued for the respondent that the appeal was
incompetent. Mustafa, J.A., stated, ‘I agree with Mr. Lakha that what emerged from the
decision of the trial judge was a “decree”. The trial judge struck out the plaint and dismissed the
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suit with costs. That conclusively determined the rights of the parties.’ The appeal was available
to the parties as of right according to the rules as the decision of the trial court was a decree
After quoting the definition of a decree in S. 2 of the Civil Procedure Act, Court held that as far
as the court deciding was concerned, that decision conclusively determined the rights of the
parties, leading to the dismissal of the civil suit. Hence the decision of the court was a decree, it
was final. Only an appeal against the decree is able to challenge the same, and not a subsequent
suit.
Appeals from orders.
 An appeal lies from orders of the High Court to the Court of Appeal as is provided in S.
66 CPA. However, whether the right is automatic or subject to leave, depends on the
nature of the order and the law under which the order was made. S. 76 CPA provides for
orders appealable to the Court of Appeal as of right.
 Under S. 76(h), an appeal lies to the Court of Appeal either automatically or with leave as
is prescribed by the rules (CPR). It follows therefore, that an appeal may lie from an
order of the High Court to the Court of Appeal if the rule under which the order is made
prescribes an automatic right of appeal. Eg O. 6 rule 1(1, 2)
 An appeal may also lie as of right from all orders set out in order 44(1) CPR.
Nalongo Burashe v Kekitibwa
At the hearing, counsel for the respondent raised a procedural issue to the effect that the appeal
was incompetent as it contravened Sections 76 and 77(1) of the Civil Procedure Act (Cap 71) as
the appellant had not sought leave to appeal as required under the law and that the appeal was
incompetent while counsel for the appellant submitted that the requirement of leave to appeal
was a simple procedural matter.
Held;
to be struck out on that account.
Alley Route v UDB where Counsel for the Respondent applied for leave to appeal against the
ruling. It was held that the application was brought under Order 41 rules 1, 2 and 9 of the CPR
hence required no leave of Court under Order 44 rules 1(I), (q) CPR before an appeal there from
can be filed. Thus there was no need for this application.
257
 Where the rule under which the order is made does not prescribe an automatic right of
appeal and the order does not fall within order 44 rule 1, order 44 r 1(2) requires the
intending appellant to seek leave from court.
Held;
Rule 3(1) of Order XLVI which provides for dismissal of an application for a review is
not included on the list under Order 44 rule 1 of orders from which appeal lie as of right.
It therefore falls under Order 44 rule 2 which lists the orders from which an appeal lie
only with leave of court.
It follows therefore, that the applicant needed leave either from the High Court which
dismissed his application for review or from the Court of Appeal to which appeal against
that dismissal would lie if leave was granted.
 The application for leave has to be primarily filed in the High Court and where the same
is not allowed, it is the applicant/the intending appellant has the liberty to apply to the
Court of Appeal. Rule 42..O. 44 rule 3; though Court of Appeal has inherent powers to
grant leave where it is not ordinarily sought.
Held;
Where leave is required to file an appeal and such leave is not obtained, the appeal filed is
incompetent and cannot even be withdrawn as an appeal. However since the appeal raised very
serious issues of law that were of public importance which required court’s determination, court
on its own motion granted the appellant leave to appeal pursuant to Rule 42 of the Judicature
(Court of Appeal Rules) and the consequential effect of which was to regularize this appeal
which would otherwise have been struck out
 The application for leave is by notice of motion with a valid affidavit save that an
informal application may be made immediately after delivery of the ruling by the high
court…this is a matter of practice.
Held;
That Order 44 rule 4 of the CPR provides that “application for leave to appeal shall be Motion
on Notice.” The rule therefore, does not give room for oral application.
258
However;
GM combined v Ak Detergents ltd [J Odoki]
Held; 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.
What is involved in that choice? If the party has instructions to appeal, he may without incurring
any coats, 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 position is not clear and the advocate needs further instructions, then he may apply later by a
motion or 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 a formal application. His duty is to resist
leave being granted upon the merit of decision.
 Where the application is rejected by the High Court, a fresh application is filed in the
Court of Appeal by notice of motion with a valid affidavit and the order rejecting the
application by the High Court must be annexed. Please note all applications to the Court
of Appeal are by notice of motion, rules 42,43 and 44.
 The application for leave to the Court of Appeal is ordinarily heard by a full bench.
 The applicant for leave to appeal must demonstrate to court that the intended appeal
raises serious triable questions of law or fact worth adjudication by the court of appeal
and that it is in the interest of justice that leave be granted.
Alley Route ltd v UDB

appeal which merit serious judicial consideration. In Degeya Trading Stores (U) Ltd Vs Uganda
Revenue Authority C. AC Application No. 16 of 1996 their Lordships of the Court of Appeal had
this to say:
" An applicant seeking leave to appeal must show either that his intended appeal has
reasonable chance of success or that he has arguable grounds of appeal and has not been
guilty of dilatory conduct."
Their Lordships went further and stated:-
"As to whether the intended appeal has a chance of success we can only at this stage say
that there are matters that merit consideration on appeal"
259
 It is a requirement of the Court of Appeal rules that where an appeal lies on leave, the
order granting leave must be included in the record of appeal, otherwise the appeal may
be struck out.
Rule 87.Court Of Appeal rules, provides for contents of appeal,..an order granting leave of
appeal is there
Beatrice Kobusingye v Phiona Nyakaana..the principle is..if an appeal lies with leave but there
is no order of leave….the appeal is incompetent
Effect of failure to obtain leave
In Matovu v Abacus Pharmacy it was held; The position of the law is now settled. Where leave
is required to file an appeal and such leave is not obtained the appeal filed is incompetent and
cannot even be withdrawn. It must be struck out. This principle was applied by the Supreme
Court of Uganda in the case of Dr. Sheikh Ahmed Mohammed Kisuule v Greenland Bank
(In Liquidation) S.C.C.A No. 11 of 2010 where a preliminary objection had been raised on the
ground that the appellant had not sought leave of the High Court or Court of Appeal prior to
filing the appeal. Kitumba, JSC observed that obtaining leave is not merely a procedural matter
but an essential step. She held that no genuine steps had been taken to apply for leave and so
there was no competent appeal before the court
How to commence an appeal.
An appeal to the Court of Appeal in civil appeals is regulated by part IV of the Court of Appeal
rules..a must reading. 75—100..
- It is a prudent requirement to extract a decree or order before lodging the appeal save that
the failure to extract a decree does not in anyway affect the competence of an appeal from
the High Court to the Court of Appeal.
Henry Kasamba v Yakobo Rutarihambwe (unreported) It was stated that it is not a
mandatory requirement to have a decree extracted because the requirement of a record of appeal
under rule 87 does not provide for it.
UBC v Sinba K Ltd Mwondha held that it is not a mandatory requirement to have a decree
extracted because the requirement of a record of appeal under rule 87 does not provide for it.
- An appeal to the Court of Appeal is commenced by a notice of appeal which must be set
out in the form prescribed under the rules.
Degeya v URA..
260
 The notice of appeal must be lodged in the High Court (not Court of Appeal)
 A notice of appeal must be signed by the intending appellant or counsel as well as the
registrar of the High Court.
 Upon lodgment in the High Court, the registrar of the High Court, is required to
translate the notice of appeal to the Court of Appeal. Rules 75 and 76
 The notice of appeal must be lodged in the High Court within 14 days after delivery
of the judgment or ruling appealed from.
In Baryaija Vs Kikwisire & Anor (CIVIL APPEAL NO. 324 OF 2017)
The appellant applied for extension of time within which to file a notice of appeal. Court noted
that the ruling intended to be appealed from was delivered on the 29th January 2016. Under rule
76 (2) of the Judicature (Court of Appeal Rules) Directions, the notice of appeal should have
been lodged by the applicant by 12th February 2016 which is 14 days from the date of the ruling.
Court after considering the application granted the extension and ordered that the notice of
appeal shall be filed within 14 days from the date of this ruling and the timelines for filing the
memorandum of appeal and the record of appeal provided under rule 83 of the Rules of this
Court shall apply.
Nantumbwe V Kuteesa
The respondents filed an application seeking to strike out a notice of appeal on account of late
filing. The applicants applied seeking for extension of time within which to serve the notice of
appeal and the letter requesting for proceedings out of time. The application for extension of time
was rejected. And on further appeal it was held that there was no pending appeal as the
application to serve a notice of appeal and a letter requesting for proceedings out of time was
rejected. The time to file an appeal has already lapsed.
 The notice of appeal must be served on all parties affected by the appeal. The service
is effected at the last known address of the affected parties. Rule 78 of the COA
Rules.
 The notice of appeal must be served within 7 days from the date of lodgment. Rule 78
Ariong v Obai (HCT-04-CV-MA-231-2013)
The application was for orders that the Notice of appeal had not been served and the
memorandum of appeal had not been filed and served. Applicant relied on the case of
Rurangaranga v. Horizon Coach Ltd SC.21/2008 to hold that service of a notice of appeal on
all parties is an essential step to constitute an appeal. In this case no step to serve was done.
Court agreed with the applicant’s submissions and struck out the notice of appeal for failure to
serve it on the applicant after filing it.
261
Nantumbwe V Kuteesa; The respondents filed an application seeking to strike out a notice of
appeal on account of late filing. The applicants applied seeking for extension of time within
which to serve the notice of appeal and the letter requesting for proceedings out of time. The
application for extension of time was rejected. And on further appeal it was held that there was
no pending appeal as the application to serve a notice of appeal and a letter requesting for
proceedings out of time was rejected. The time to file an appeal has already lapsed.
 Once the notice of appeal is served on the respondent, the respondent is required to
file a notice of address in the Court of Appeal. Rule 80
 The appeal is itself instituted within 60 days from the date of lodgment of the Notice
of Appeal. Rule 83..must read.
 The appeal is filed when a memorandum and record of appeal together with payment
for the relevant court fees and security for costs are presented for filing at the registry
of the Court of Appeal.
 However, it may not be possible to have the proceedings and judgment typed,
certified and availed within 60 days after lodgment of the notice of appeal. It is
therefore prudent but a mandatory requirement as well that at the lodgment of the
notice of appeal or within 30 days from the date of judgment or ruling, the intending
appellant must formally apply for typed and certified record of proceedings and
judgment. The letter applying for such proceedings must be served on the respondent
or respondent’s counsel. Rule 83 (1)(2)(3) COA Rules
Nyendwoha Bigirwa Norah v The Returning Officer Buliisa District and Electoral
Commission.
Whether the respondents’ Notice of Appeal should be struck out for failure to serve the
Applicant with the letter requesting for proceedings?
HELD;
Rule 83(2) of the Rules provides:
“Where an application for a copy of the proceedings in the High Court has been
made within thirty days after the decision desired to be appealed against has been
made, 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.”
Rule 83(3) of the same Rules provides:
262
“An appellant shall not be entitled to rely on subrule (2) of this rule, unless his or
her application for the copy was in writing and a copy of it was served on the
respondent, and the appellant has retained proof of that service.”(sic)
The service envisaged under Rule 83 (supra) must, in our view, be effected on the affected
party immediately by the other party applying for the copy of the proceedings. Election
related litigation must be handled expeditiously and the rules governing that litigation must
be strictly construed and complied with.
That failure by the respondent to serve the applicant with a copy of the letter requesting for
the proceedings immediately it was written to the court amounted to failure by the
respondent to take an essential step in prosecuting the appeal. It was a fatal failure too.
In the final result, we allow the application and accordingly strike out the Notice of Appeal.
In Maviri Vs Jomayi Property Consultants Ltd (CIVIL APPLICATION N0.274 OF 2014)
Held; It is clear from the above provisions that rule 83 (1) provides that appeals must be filed
within 60 days of the date of the initial decision. On the other hand Rule 83(2) and 83 (3) permit
an appellant to exclude from the computation of the 60 days’ limit, the time taken by the
Registrar to prepare and deliver copies of typed proceedings to the appellant, provided the
application for the proceedings was in writing and that a copy of the said letter/application was
served upon the respondent
 The effect of a letter applying for the proceedings, is that the time within which the
appeal is instituted starts running from the date when the proceedings are made
available to the appellant.
National Housing and Construction Co. v Kyomukama
Held;
Rule 83 (1) provides that appeals must be filed within 60 days of the date of the initial
decision. However, Rules 83 (2) and 83 (3) permit an appellant to exclude, from the
computation of the 60 days’ limit, time taken by the Registrar to prepare and deliver copies
of the typed proceedings to the appellant, provided that the application for proceedings was
in writing and that a copy of the said letter/application was served upon the respondent.
It should be pointed out that proof of service of the letter envisaged by rule 83 (3) can
only be by having the letter endorsed. This, together with the certificate of correctness of
the record, by the Registrar goes to confirm when the time starts to run within which to
file the appeal.
263
It is thus clear that in the absence of the endorsement on the letter applying for the record,
the respondent cannot claim the benefit of Rule 83 (3) for there is no way of proving that
the letter was actually served on the respondent. Service and proof of such service is
mandatory. The court, therefore, has no option but to hold that the letter applying for the
record was never served and that therefore, the notice of appeal is null and void. It is
accordingly struck out.
 The registrar of the High Court is required to formally notify the appellants that the
proceedings are available and that is when the time starts running.
Wanume David v URA
Held; We reiterate that the law requires and imposes a duty upon the Registrar of the High
Court, to whom a written application for a copy of proceedings is made, to reply in writing to
the applicant, informing the said applicant as to the readiness and availability of the copy of
proceedings applied for..
 The registrar of the High Court is also required to execute a certificate (registrar’s
certificate) confirming that the request was made for the proceedings, the same were
availed and the time excluded from computation.
Wanume David v URA
Held; The Respondent, having applied for a copy of the proceedings, was entitled to receive
from, and the Court Registrar was under a legal duty to issue, a certificate certifying the time
taken for the preparation and the availability of the Record of proceedings that the respondent
had applied for
 Once the proceedings are availed, the appellant must formulate grounds of appeal
which must follow the format set out in rule 86 of the COA Rules.
 The memorandum and record of appeal must be served on the respondent within 7
days from the date of lodgment. Rule 88 Court Of Appeal Rules. This is a mandatory
requirement.
MURIISA NICHOLAS v GEORGE RUYONDO & ANOTHER
Counsel for the applicant contended that the record of appeal was served outside the seven days
which are mandatory under rule 88 (1) of this court’s rules which provides:-
“ (1) the appellant shall, before or within seven days after lodging the memorandum of appeal
and the record of appeal in the registry, serve copies on them on each respondent who has
complied with the requirements of rule 80 of these rules”..
Held;
264
In accordance with the evidence before us, the memorandum of appeal was lodged on 3rd
November 2011.Whereas in the affidavit of George Spencer paragraph 6, the record was served
on counsel for the respondent on 7th November 2011, in the affidavit in rejoinder of Mwijusya
Yafeesi paragraph 4, he deponed that the record of appeal was served on 24th October 2011 and
annexure “A” was attached in support of it with the words “received with protest”.
That according to rule 88(1) cited earlier, the record was supposed to be served on 10th
November 2011. On assessment of evidence court belived the affidavit of George and found that
the memorandum of appeal was served within 7 days.
NB..always start ..an appeal is a creature of statute…then S. 66, then 76..go to the order and see
if its allowed, if not now go to Order 44 rule 1…if its not there, then u go to 44 rule 2. Leave of
court.
 The memorandum and record of appeal are filed in the court of appeal and must be
served within 7 days on the respondent. Once service is effected on the respondent such
respondent has the following rights;
 The respondent may file a notice of affirmation which means a notice indicating that the
respondent shall support the decision of the lower court on other grounds other than those
considered by the trial court.
Rule 92 of the COURT OF APPEAL Rules.
 The respondent who is of the view that the record of appeal filed by the appellant omitted
a number of pertinent documents may file a supplementary record of appeal including the
omitted documents.
Rule 90 of COURT OF APPEAL Rules.
Wakayima Musoke Hannington v Sebunya; There was a supplementary record of appeal

by the respondent and it was recognized by Court.
National Housing & Construction Co. Ltd V Salome T. B. Kyomukama
Ground 2 was to the effect that the respondent omitted/excluded documents from the Record
of appeal without leave of court under Rule 87 of the Rules of this Court.
Held; Rule 90 of the rules of this Court mandates a respondent who is dissatisfied with the
record of appeal filed by the appellant to invoke Rule 90 and prepare a supplementary record
265
 The respondent may also challenge the competence of an appeal by filing an
application to strike out the appeal or the notice of appeal. The application is
normally premised on the following grounds.
a) That no appeal lies.
b) That the notice of appeal or the appeal (memorandum and record of appeal) was filed
outside the specified time.
c) That the appellant has no locus to commence the appeal or that the appellant has failed to
take an essential step in proceeding with the appeal.
Nyendwoha Bigirwa Norah vs. Electoral Commission & Another (supra), the Court of
Appeal construed the rules applicable to appeals in the Court of Appeal and held that failure by
the respondents to serve the applicant with a copy of the letter requesting for the proceedings
immediately it was written to court amounted to failure by the respondents to take an essential
step in prosecuting the appeal.
Kasibante Moses V Electoral Commission
The grounds of the application are that the respondent failed to file a Notice of Appeal within the
prescribed seven (7) days after the delivery of the High Court Judgement, failed to lodge in court
a Memorandum of Appeal within seven days after the Notice of Appeal had been filed, and also
failed to lodge a Record of Appeal within thirty (30) days after filing the Memorandum of
Appeal. In effect the applicant contends that the Respondent has failed to take essential steps to
appeal and prosecute Election Petition Appeal No.47 of 2011.
Held;
As to the law applicable, this application is brought under Rule 82 of the Rules of this
Court, among others. This Rule provides:-
“A person to whom a notice of appeal has been served may at anytime, either before or
after the institution of the appeal, apply to the court to strike out the notice of appeal 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.”
The Rule provides for two instances where a person served with a Notice of Appeal can
move court to strike out the Notice of Appeal or the appeal itself. The first, is where,
according to the one served with the Notice of Appeal, no appeal lies. The second is
where the person served claims that the intending appellant has not taken an essential step
266
at all in the proceedings, or has taken the same but outside the time prescribed by the
rules:
Taking an essential step is the performance of an act by a party, whose duty is to perform
that fundamentally necessary action demanded by the legal process, so that, subject to
permission by court, if the action is not performed as by law prescribed, then whatever
legal process has been done before, becomes a nullity, as against the party who has the
duty to perform that act.
It is now settled as the law that it is the duty of the intending appellant to actively take the
necessary steps to prosecute his/her intended appeal. It is not the duty of the court or any
other person to carry out this duty for the intending appellant. Once judgement is
delivered, the intending appellant has to take all the necessary steps to ensure the appeal
is being in time See: Utex Industries Ltd Vs Attorney General: Civil Application No.52
Of 1995 (Sc)
In case of an election petition appeal, the intending appellant has even a higher duty to
expeditiously pursue every step in the appeal so that the appeal is disposed of quickly.
Court found that the memorandum of appeal was filed out of time and thus struck out the
appeal by holding that it was the duty of the respondent, as the intending appellant, to
actively take the necessary steps to prosecute the intended appeal.
The import of failure to take essential step in the proceeding was explained in Bakaluba
Mukasa Peter & another VS Nalugo Mary Margret Sekiziyivu, Court of Appeal
Election Petition Application No. 24 of 2011, where it was held inter alia, that taking an
essential step is the performance of an act by a party whose duty is to perform that
fundamentally necessary action demanded by the legal process, so that subject to
permission by the court, if the action is not performed as by law prescribed, then
whatever legal process has been done before, becomes a nullity, as against the party who
has the duty to perform that act. It was further held in that case that delay in taking the
right time hinders successful parties from enjoying the fruit of their judgment which was
obtained in their favour.
267
In Maviri Vs Jomayi Property Consultants Ltd (CIVIL APPLICATION N0.274 OF
2014)
Held; In the premises, we find that the respondent did not take essential step in the
proceedings within the prescribed time. We hold that the appeal was not lodged within 60
days from the date of receipt of the record from the High Court. Appeal struck out.
 The application is by notice of motion with a valid affidavit and is brought under
Rule 82.
 The decision to strike out an appeal does not give any right of appeal to the appellant
to appeal to the Supreme Court.
 The decision to strike out an appeal must be taken by a full bench of the COURT OF
APPEAL.
Rule 53 of COURT OF APPEAL Rules.
 The decision to strike out an appeal does not bar the appellant from remedying the
defect where the ground for striking out was failure to file or serve within time.
 Where the appellant has defaulted on filing or serving, either the notice of appeal or a
memorandum or record of appeal, the remedy available is an application for
extension of time with which to file or serve. The application is brought under Rule 5
and Rule 2 (2) of the Court Of Appeal Rules, and is by notice of motion with a valid
affidavit.
 The applicant for extension of time must prove sufficient cause as to why the
particular step was not taken within the prescribed time.
Eric Tibebaga v Begumisa; there was an application for extension of time supported by an
affidavit. held; the law places a burden of proof upon the applicant to give "sufficient reason"
why there was a delay. In view of the fact that the affidavit in support of this application is
riddled with falsehood and it is a mere hearsay, I find that the application has not been supported
by a valid affidavit as is required by rule 42(1) of the rules of this court. That being the position,
there is no evidence to establish that the applicant had sufficient reasons, within the meaning of
rule 4 of the rules of this court, which prevented him from filing the submissions on time.
Application is accordingly dismissed.
 The effect of the grant of extension of time is to validate the documents which were
filed or served out of time.
Godfrey Magezi & Anor v Sudhir Ruparelia.
268
Held; that the legal effect of extending time to tile an appeal out of time when the appeal had
already been duly tiled albeit out of time is to validate that appeal or to excuse the late tiling of
that appeal. Court therefore granted extension of time by validating the documents that were
already filed though out of time.
 The application for extension of time may be heard by a Registrar of the Court Of
Appeal or a single Justice of that court. The Registrar exercises such powers under
Practice Direction No. 1 of 2004 (Judicial Powers of the Registrars of the COURT
OF APPEAL).
 Where a party is aggrieved by the decision of the Registrar or a single Justice, the
remedy lies in a reference to a full bench.
Mugabo Peter v James Kimala; This was a reference to a single Justice of Appeal from the
Ruling and orders of the Registrar of the Court of Appeal at Kampala. Learned Counsel for the
Respondents argued, among other things that an application of this nature was supposed to be
before a full bench of three Justices of Appeal.
Held; the application was dismissed holding that there is no statutory support for the reference
made by the applicant from the decision of the Registrar to a single Justice of Appeal. That it
would have been a better option for the applicant to fix for hearing before a bench of three
Justices.
Rules 55 & 110 of the COURT OF APPEAL.
S. 12 (1 & 2) of the Judicature Act.
Lukwago Elias v Attorney General.
Held; The substantial issue is, therefore, whether a decision or order of a single Judge of the Court of
Appeal is appealable to the Supreme Court. Our opinion is that such an appeal is not possible because of
Section 12 (2) of the Judicature Act, which states that Any person dissatisfied with the decision of a single
Justice of the Court of Appeal in exercise of any power under Subsection (1) 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 appropriate action the applicant can take is to refer the matter to a bench of three Judges of the Court of
Appeal for review. That bench has power to vary, reverse or confirm the decision of a single Judge.
Thereafter, the applicant can appeal to this Court against the decision of the three Judges of the Court of
Appeal
 The appeal must be conferenced before the Registrar of the COURT OF APPEAL where
parties exchange their intended legal arguments through filing conferencing notes.
 Where there is any execution, the appellant may apply for stay of execution pursuant to
Rule 6 of the COURT OF APPEAL Rules. The application for stay may be lodged in the
High Court or in the COURT OF APPEAL
269
Lawrence Musiitwa Kyazze vs Eunice Busingye, SCCA No. 18 of1990"
Held; This court would prefer the High Court to deal with the application for a stay on its merits
first, before the application is made to the Supreme Court.(now Court of Appeal). However, if
the High Court refuses to accept jurisdiction, or refuses jurisdiction for manifestly wrong
reasons, or there is great delay, this Court may intervene and accept jurisdiction in the interest of
justice.
In Kyambogo University v Prof. Isaiah Omolo Ndiege CACA no. 341 of 2013, which was an
application for an interim stay of execution, Justice Kakuru held that “It is now settled law that
this court and the High Court have concurrent jurisdiction in this matter. It appears to me that
applications of this nature should be first filed in the High Court as a general rule, and should
only be filed in this court, where exceptional circumstances exist”.
In Kisawuzi v DFCU Bank, Court agreed with the position of the law that the Court of Appeal
and the High Court have concurrent jurisdiction on an application for stay of execution.
 Rule 6 of the COURT OF APPEAL Rules provides that pendency of an appeal is not
a bar to execution. It follows therefore that execution can only be avoided by
obtaining an order of stay.
KCC v National Pharmacy Ltd- [1979]HCB 132 (CA) held; that the pendency of an appeal
does not of itself constitute a stay of execution.
Kyambogo University v Prof Ndiege; held; It is therefore incumbent upon the applicant in
every application of stay of execution to satisfy court that grounds exist for grant of a stay of
execution. The assumption that once a party has filed an appeal a stay of execution must follow
as a matter of course has no legal basis.
 The applicant must prove the following;

1. That he or she has lodged a notice of appeal and the same has been transmitted to the
COURT OF APPEAL.
2. That he or she has requested for proceedings to enable him or her prepare and file the
appeal.
3. That in the meantime the respondent has commenced the process of execution of a decree
being challenged on appeal.
4. That the applicant will suffer substantial loss if the execution is not stayed.
5. That the reliefs sought on appeal, which appeal is meritorious, are likely to be rendered
nugatory if a stay is not granted.
6. That it is in the interest of justice
Dr. Ahmed Kisuule Greenland Bank
For an application in this court for a stay of execution to succeed, the applicant must first show,
subject to order facts in a given case, that he/she has lodged a notice of appeal. The other facts to
which lodgement of the notice of appeal is subject, vary from case to case but include the fact
270
that the applicant will suffer irreparable loss if a stay is not granted; that the applicant’s appeal
has a high likelihood of success
The most often cited authority in application of this type is Lawrence Musiitwa Kyazze - vs -
Eunice Busingye, Civil Application No. 18 of 1990, in which this court held that “Parties
asking for a stay” should meet conditions like:
(1) that substantial loss may result to the applicant unless the order is made.
(2) that the application has been made without unreasonable delay.
(3) that the applicant has given security for due performance of the decree or order as
may ultimately be binding upon him.
Kyambogo University v Prof. Isaiah Omolo Ndiege.
After citing the above authorities Justice Kenneth Kakuru went on as follows;
This position of the law has been followed by this court in numerous applications of this
nature. That this Court must ensure that an appeal if successful is not rendered nugatory.
In my view this is the most important ground that court must consider in an application of
this nature.
From the above the applicant ought to satisfy the following conditions;
1. That the applicant has lodged a notice of appeal in accordance with Rule 76 of the
Rules of this Court.
2. That a substantive application for stay of execution has been filed in this court and
is pending hearing.
3. That the said substantive application and the appeal are not frivolous and they
have a likelihood of success.
4. That there is a serious and imminent threat of execution of the decree or order and
that if the application is not granted the main application and the appeal will be
rendered nugatory.
5. That the application was made without unreasonable delay
6. The applicant is prepared to grant security for due performance of the decree.
7. That refusal to grant the stay would inflict greater hardship than it would avoid.
 The applicant may file an application for an interim order of stay of execution
pending determination of the main application for stay.
Margaret & Joel Kato v Nulu Nalwoga.
271
On grant of interim stay, held;
Rule 6 (2) (b) the Rules provides for stay of execution whether interim or substantive. However,
there are different principles which the court must consider when considering an interim stay and
a substantive stay.
In the instant application for an interim stay of execution, the court in addition to considering
that a notice of appeal has been filed and there is a substantive application has to consider
whether there are special circumstances warranting the granting of such an interim order. An
example of that would be the immediate destruction of the suit property, I respectively agree
with the following statement in Hwan Sung Industries Ltd
(Supra) "---for an interim 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 pre-empt consideration of matters necessary in deciding whether or not

to grant the substantive application for stay."
G. Afaro vs Uganda Breweries Ltd ((Civil Application No 12 of 2008)
It is important that when a party pursues his/her right of appeal, the appeal if successful, should
not be rendered nugatory. I am satisfied that the respondent’s threat to execute the lower court’s
order is real. A notice to show cause why the execution should not be carried out has been served
on the applicant. He is to appear in the lower court for that purpose on 24-07-08. This interim
order is therefore necessarily to preserve the status until the substantive application for stay of
execution is heard and disposed of.
Hon. Theodore Ssekikuubo and others v The Attorney General and others, SC
Constitutional Application No. 04 of 2014 where this Court said:
“Rule 2(2) of the Judicature Supreme Court Rules gives this Court very wide discretion
to make such orders as may be necessary to achieve the ends of justice. One of the ends
of justice is to preserve the right of appeal. Inthe cases of Yakobo Senkungu and others
vs Cerencio Mukasa, SC Civil Application No. 5 of 2013 and Guliano Gargio vs
Calaudio Casadiothis Court stated that ‘the granting of interim orders is meant to help
parties to preserve the status quo and then have the main issues between the parties
determined by the full court as per the Rules”
Considerations for the grant of an interim order of stay of execution or interim injunction
are whether there is a substantive application pending and whether there is a serious
threat of execution before hearing of the substantive application. Needless to say, there
must be a Notice of Appeal.See Hwang Sung Industries Ltd vs. Tajdin Hussein and 2
Others(SCCA NO. 19 of 2008).(the underling was added for emphasis).
272
Court found that the applicants had not only filed a Notice of Appeal and requested for the
record proceedings of the Constitutional Court, but they had filed an application for a substantive
stay of execution which was pending before Court. Court also established from the affidavit
evidence that there was an imminent threat of expulsion of the applicants from Parliament. The
court granted the application on that basis.
Powers of the Court of Appeal
 Where the court of appeal is the first appellate court, it is empowered to exercise the
jurisdiction vested in the trial court and make appropriate orders S.80[1][2] CPA S.11 of
the judicature Act
Beatrice Kobusingye v Fiona Nyakana on S.11 of the judicature Act
As to the general applicability of the Civil Procedure Act, this is to be found in the old S. 12
(now S.11) of the Judicature Act. The section reads as under: -
"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"
The powers, authority and jurisdiction referred to are those of any trial court whose
decisions are appealed up to the Court of Appeal. This provision vests in the Court of
Appeal the same powers, authority and jurisdiction which, for instance in this case, the
Grade I Magistrate exercised when he tried and determined the case. What this
means is this. After the Court of Appeal has heard and reached its conclusions, in
deciding the orders which the Court of Appeal can make the court is bound to make such
orders that the trial Magistrate could have made in the case in accordance with law. If the
trial Magistrate were to award damages the amount would be the figure within the
jurisdiction conferred on him by the Magistrates Act. Obviously the Grade I Magistrate in
the conduct of the trial was regulated principally by the Civil Procedure Act and the Civil
Procedure Rules in addition to the Magistrates Courts Act.
It follows that in making any orders which the trial Magistrate could make, the Court of
Appeal will in effect be applying CPA, Civil Procedure Rules and the Magistrate Courts
Act because those are the laws which give the trial Magistrate jurisdiction and powers. If
the court decided to award damages, the damages would be such that the amount would
273
not exceed what Magistrate's Act allows the trial Magistrate to award. In short section 11
makes it possible for the Court of Appeal to dispose of the case completely instead of
returning it to a trial Magistrate to make the orders in conformity with decision of the
Court of Appeal. The same is the case where the court determines an appeal from a
decision of the High Court made in exercise of original jurisdiction.
 An appellate court will not interfere with the exercise of discretion of the trial judge
unless he proceeded on wrong principles of law or applied the principles incorrectly in a
manner that causes miscarriage of justice.
Mwiru Paul v Hon Igeme Nathan
Held; 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.
Court relied on the case of Software Distributors (Africa) Ltd &another v Kambaho Perez –CA
No.07/06 where it had 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 unjudicially 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.”
Banco Arab Espanol v Bank of Uganda
Held; It is now well settled law that an appellate court should not interfere with the exercise of
unfettered discretion of a trial court unless it is satisfied the trial court misdirected itself in some
matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a
whole that the trial court was clearly wrong in exercise of its discretion and that as a result there
was a failure of justice.
 In an appeal from the High Court to the Court of Appeal fresh evidence may be admitted
on application by any of the parties [mainly the appellant] Rule 29 of the court of appeal
Rules and Rule 2[2] which is the equivalent of S.98.
Board of Governors of Gulu V Wilson Odong
Counsel for the appellant argued that under s. 81 (l)(a) of the Civil Procedure Act an
appellate court had, power to take additional evidence, which had not been produced at the trial.
The respondent-who appeared in person opposed the introduction of such evidence. He argued
274
that an appeal is not a trial and therefore the appeal should be conducted on the evidence on
record.
Held;
While an appellate Court has power to allow or not to allow an appellant to introduce fresh
evidence at the appellate stage it is not of right under the law that the appellant should call
witnesses at the appellate stage.
2. The question whether or not allow an appellant to call fresh evidence at the appellate state was
a discretionary matter of an appellate court. The discretion had to be exercised judicially on well
founded principles.
3.. The principles upon which an appellate court would exercise its discretion in deciding
whether. or not to allow additional or fresh evidence to be introduced at appellate stage were set
out in Elgood v Regina [1968] 1 EA 274 as follows
(i) the evidence that it is sought to call must be evidence which was not available at the trial;
( ii) it must be evidence relevant to the issues;
(iii) it must be evidence which is credible in the sense that it is well capable of belief;
(iv) the court will, after considering that evidence, go on to consider whether there might have
been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence
had been given together with the other evidence at the trial.
v) it is only in very exceptional cases that the Court of Appeal will permit additional evidence to
be called;
 Where an appeal to the Court of Appeal is a third appeal, a certificate of importance has
to be obtained either from the high court or where the High court refuses then from the
Court of Appeal
Beatrice Kobusingye v Fiona Nyakana
This was a third appeal to the Supreme Court from an interlocutory order of the trial magistrate.
Held;
Third appeals to this Court are governed by S.6(2) of the Judicature Act which states:
"6(2) 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 matter concerns a matter or matters of law
of great public or general importance, or if the Supreme Court considers in its over all
duty to see that justice is done, that the appeal should be heard."
275
That the Court of Appeal ought not to have granted leave to Beatrice Kobusingye to appeal to
this Court as the purported appeal was emanating from an interlocutor, order. Section 6(2) of the
Judicature Act prohibits such appeal. It follows that the Court of Appeal erred in giving the
certificate for the appellant to lodge this appeal. In the result, the purported appeal is incompetent
and must be struck out.
APPEALS TO THE SUPREME COURT
 The Supreme Court as an appellate court hearing civil appeals from the COURT OF
APPEAL is presided over a panel of 5 Justices.
 The right of appeal to the Supreme Court is a creature of both the Constitution and the
Judicature Act.
 An appeal lies from a decision of the COURT OF APPEAL to the Supreme Court
where the COURT OF APPEAL has reversed, confirmed, or varied the decision of
the H.C.
Beatrice Kobusingye v Phiona Nyakaana
The two respondents instituted in the Chief Magistrate's Court, Fort Portal, a suit against the
appellant, claiming damages for malicious prosecution and false imprisonment. A Magistrate
Grade I who tried the suit dismissed it because it "was improperly brought before the court." The
respondents unsuccessfully appealed to the High Court against the decision of the Magistrate
Grade I. The respondents launched a second appeal to the Court of Appeal. There were four
grounds in the memorandum of the appeal to that Court. The appellant raised objections which
were overruled and dissatisfied with the ruling of the Court the appellant sought and was granted
leave by the Court of Appeal to appeal to this Court on the ground that the appeal involves
matters of law of great public and general importance. Hence this appeal arises from an
interlocutory ruling by the Court of Appeal rejecting an objection to the competence of two of
the grounds of appeal in that Court.
Held;
Third appeals to this Court are governed by S.6(2) of the Judicature Act which states:
"6(2) 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 matter concerns a matter or
matters of law of great public or general importance, or if the Supreme Court considers
in its over all duty to see that justice is done, that the appeal should be heard."
276
This obviously means that this "appeal" has no jurisdictional foundation. As we recently stated in
the UNEB case of Uganda National Examinations Boards' Vs Mpora General Contractors,
(Civil Application No.19 of 2004), there is no right of appeal to this Court originating from
interlocutory orders of the Court of Appeal which orders are incidental to the appeal but not
resulting from the final determination of the appeal itself. Here the Court of Appeal has not
determined the appeal yet. It follows that the Court of Appeal erred in giving the certificate for
the appellant to lodge this appeal. Normally we would have asked parties to address us before
making a final decision. However in view of the clear provisions of sub sec. (2) (supra), and of
our recent decision in the UNEB case (supra) , it is unnecessary to hear parties on it. This appeal
is therefore incompetent and ought to be struck out
 There is no right of appeal from the COURT OF APPEAL to the Supreme Court where
the COURT OF APPEAL strikes out an appeal. The order for striking out the appeal is an
interlocutory order but not a variation or reversal of the High Court decision.
Uganda National Examinations Boards' Vs Mpora General Contractors, (Civil Application
No.19 of 2004), there is no right of appeal to this Court originating from interlocutory orders of
the Court of Appeal which orders are incidental to the appeal but not resulting from the final
determination of the appeal itself.
This was approved in Beatrice Kobusingye supra.
The Supreme Court further approved the two decisions in Dr. Kasirivu Atwooki And Ors V
Grace Bamurangye Bororoza. Holding that;
Neither Section 78 of CPA nor Article 132 of the Constitution confer any right of appeal to
the respondents nor does either confer any jurisdiction on this Court to entertain an appeal
arising from the decision of the Court of Appeal in interlocutory matters such as the ruling in
the Court of Appeal Civil Application No. 85 of 2009 between the present parties.
Interlocutory applications are generally an exercise intended to help that Court to do house
clearing. If appeals were allowed to come to this Court from interlocutory rulings of the
Court of Appeal, this Court would be swamped with wholly unnecessary multiplicity of
appeals. Indeed the Court of Appeal itself would be clogged with many pending appeals
which could not be heard and decided because they would await decision on such
interlocutory appeals to this Court. We can foresee the possibility of encouraging
multiplicity of unnecessary appeals to this Court. Delays would affect expeditious disposal
of appeals in the Court of Appeal
 The appeal to the SUPREME COURT is a creature of statute and can only be preferred
where the law expressly prescribes so.
Erias Lukwago v Attorney General
277
The applicant applied for stay of execution of interim orders made by DCJ Kavuma of the Court
Of Appeal. The substantial issue was, whether a decision or order of a single Judge of the Court of Appeal
is appealable to the Supreme Court?
Held;
Supreme Court has no jurisdiction to entertain an appeal from a decision of a single Justice of Appeal, given
the express provisions of Section 12 of the Judicature Act.
The right of appeal is a creature of Statute. There is nothing known in law as an inherent right of appeal.
The legal foundation for application for stay of execution pending an appeal is the right of appeal to the
proper court and the fact that a Notice of Appeal has been filed in that court. Where a Notice of Appeal has
been filed but the right of appeal does not exist, the Notice of Appeal is incompetent and cannot form the
basis for an application for stay of execution pending appeal, as there is no pending appeal.
 Where the appeal to the SUPREME COURT lies with leave (from orders of the COURT
OF APPEAL), such leave must be obtained either from the COURT OF APPEAL or the
SUPREME COURT.
Zubeda Mohamed & Anor v Wallia & Anor
 Where an appeal lies to the SUPREME COURT as a third appeal, a certificate of

importance must be obtained either from the COURT OF APPEAL or the SUPREME
COURT.
Gashumba v Sam Nkundiye
The main thrust of his confession is that the appeal is incompetent for lack of a certificate from
the Court of Appeal that the appeal concerns a question of great public or general importance as
required by law, and the execution is complete because he is in sole occupation of the suite land.
Held;. In the circumstances of this case, it is of course obvious that the 14 days provided under
Rule 39(1) of the Supreme Court Rules within which to apply for the certificate has long expired.
The applicant will therefore, if he wishes to pursue the appeal, have to apply for extension of
time within which to apply for the certificate before lodging the Record of appeal because it is a
requirement under Rule 83(1) and (2) (h) which provides that: “(1) The record of appeal shall
contain the records of appeal in the Court of Appeal, the High Court, and in case of a third
appeal the record of appeal from the trial magistrate’s court in addition to the foregoing
records: (2) (a)…(g)…(h) in case of a third appeal, the certificate of the Court of Appeal that a
point or points of law of great public or general importance arise”
278
 Any application for extension of time within which to appeal or otherwise lodge or serve
any document in an appeal to the SUPREME COURT is heard by a single Justice.
S. 8(1) Judicature Act provides; 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
Margaret & Joel Kato v Nulu Nalwoga
There was an application for extension of time to serve a notice of appeal. The first objection is
that the application is improperly before the court as it should have been filed in the Court of
Appeal first.
Held; Clearly under Rule 5 of the rules of this court, the court has unfettered discretion to extend
time for sufficient reason and as counsel for the applicant correctly argued, there is no concurrent
jurisdiction with the Court of Appeal in applications for extension of time. Therefore, the
respondent's objection on this ground fails. Justice Jotham Tumwesigye thus was convinced that
this is an appropriate case for this court to exercise its discretion and extend time for service of
the Notice of Appeal.
 Where a party is aggrieved with a decision of a single Justice of the SUPREME COURT,
whether for an interim order of stay or extension of time, a reference is made to a panel
of 3 Justices (not 5).
Section 8(2) of the Judicature Act which governs references provides that:
"(2)Any person dissatisfied with the decision of a single justice in the
exercise of a power under subsection (1) 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."
Goodman Agencies Ltd v Asa Agencies Ltd.
Goodman Agencies Ltd, (the applicant) made this reference from the ruling of Okello, JSC,
sitting as a single judge of this Court. The reference was made under section 8(2) of the
Judicature Act and Rules 41(2) and 52(1)(b) of the Rules of this Court and was heard by a panel
of three justices.
 The application for stay of execution in the SUPREME COURT is heard by a full bench
(5 Justices).
Margaret & Joel Kato v Nulu Nalwoga. Where the five Justices granted an order for stay of
execution of a decree.
279
Zubeda v Wallia.
The law governing applications for injunctions or stay of execution is set out in Rule 6(2) (b) of
the Rules of this Court. Applications for stay of execution are handled by a full bench. In
cases of urgency, however, this Court is empowered by Rule 2(2) of the Rules of the Court to
issue interim orders in order “to achieve the ends of Justice”. Applications for interim orders are
heard by a single Justice of the Court. Applications for interim orders are granted pending
determination of the substantive application, not the appeal. An interim order is a stop gap
measure to ensure that the substantive application is not rendered nugatory.
Note: In the SUPREME COURT, security for costs is 400,000 shs Rule 101 as opposed to
200,000 shs in COURT OF APPEAL. The rest of the rules and timelines are the same as those of
the COURT OF APPEAL. Rule 105.
Supreme Court: Pre-hearing
Court of Appeal: Conferencing
High Court: Scheduling
Note: You cannot appeal to the EACJ from the SUPREME COURT
CONSTITUTIONAL LITIGATION.
Jurisdiction
 The Constitutional Court Article is provided for under Article 137 of the Constitution.
Article 137(1) of the Constitution provides that any question as to the interpretation of this
Constitution shall be determined by the Court of Appeal sitting as the constitutional court.
 Article 137(3) of the constitution further provides that a person who alleges that an Act
of parliament or any other law or thing in or done under the authority of any law is
280
inconsistent or in contravention with the constitution may petition the constitutional court
for a declaration to the effect and redress where appropriate.
 Therefore, the jurisdiction of the Constitutional Court is to determine the interpretation of
the constitution and determine the acts that are inconsistent or in contravention of the
articles of the constitution or any other law.
Justice Wambuzi C.J. as he then was in the case of Attorney general Vs Major General David
Tinyefunza held;
“In my view jurisdiction of the Constitutional Court is limited in Article 137 (1) of the
Constitution to interpretation of the Constitution. Put in a different way no other jurisdiction
apart from interpretation of the Constitution is given. In these circumstances I would hold that
unless the question before the Constitutional Court depends for its determination on the
interpretation or construction of a provision of the Constitution, the Constitutional Court has no
jurisdiction.”
 The Constitutional Court also has jurisdiction under Article 50 to grant redress where the
petition is clearly brought under Art 137, that is, where the application involves
interpretation of the constitution.
Justice Kanyeihamba JSC (as he was then) stated in the now famous case of the Attorney
General versus Major General David Tinyefuza (Supra) that not every violation of the
Constitution must end up in the Constitutional Court.
In the other words, the concurrent original jurisdiction of the Court of Appeal
sitting as a Constitutional Court can only arise and be exercised if the
petition also raises questions as the interpretation or construction of the
Constitution as the primary objection or objectives of the petition. To hold
otherwise might lead to injustice and, in some situation, manifest absurdity.”
In Charles Kabagambe vs U.E.B Constitutional Petition No.2/1999 it was held; :

" It follows that a person who seeks to enforce a right or freedom guaranteed under the
Constitution, but whose claim does not call for interpretation of the Constitution, has to apply to
any other competent court. The Constitutional court is competent for that purpose only upon
determination of a petition under Article 137 (3). " It is therefore now settled once and for all
that if the matter does not require an interpretation of a provision of the Constitution, then
there is no juristic scope for the invocation of the jurisdiction of this court.
The above proposition of the law is in tandem with the decision of the Supreme
Court in both the Tinyefuza and the Serugo cases.
281
In Uganda Network On Toxic Free Malaria Control Limited V The Attorney General
Held; Suffice it to say, a petition is not vitiated by a mere fact that the petitioner cited both
Article 50 and Article 137 of the Constitution as being the provisions under which the petition is
brought. This Court has jurisdiction under both Article 50 and Article 137. However, before this
Court can exercise jurisdiction as a competent Court under Article 50, a matter must have first
been properly before it for a question for Constitutional interpretation under Article 137. See;-
The Attorney General vs Major General David Tinyefuza Supreme Court Constitutional
Petition No. 1 of 1997 and Ismail Serugo vs KCC and Attorney General (Supra)
For this Court to entertain any matter under Article 50 of the Constitution and to enforce the
Constitution and grant specific remedies that matter, must first have come under Article 137 and
must have disclosed questions for Constitutional interpretation.
 The court has no jurisdiction to interprete the decision of a final court. The remedy is an
appeal of the decision complained about.
Serapio Rukundo v AG
HELD; We agree that a decision of a court can only be challenged by way of

appeal. Where there is no right of appeal like in the Bakunda's case, if the decision is
alleged to be contrary to a provision of the Constitution, it can not be challenged under
Article 137 of the Constitution because the power to interpret statutes is vested in the
courts. A decision of a final court has no remedy in the Constitutional Court as the latter
court is not an appellate court. To do so would only undermine the principle of finality and
circumvent the law which prohibits appeal from such a decision
Law applicable.
 The procedure for applying or interpreting the Constitution is quite different from the
other procedure in civil litigation. Interpretation of the Constitution is by way of a
reference or petition.
 In interpreting the constitution, the Constitutional Court applies the Constitution and
other applicable rules of procedure.
In Magombe v Uganda; held
Rule 23 of the Constitutional Court (Petitions and References) Rules, 2005 (SI 91 of 2005)
provides that the procedure at this Court sitting as a Constitutional Court shall be regulated by
the Civil Procedure Act (CPA) and Rules (CPR); in addition to the Court of Appeal Rules with
necessary modifications.
282
In Dr. James Rwanyarare and Another v Attorney General ( (Ruling) (Constitutional
Petition No. 5 of 1999) )
In applying rules relating to service, the court rejected counsels argument that constitutional
petitions are not civil proceedings and held that they are, except that they take precedent
over all matters
HELD; That the court is permitted by rule 13(1) of the Legal Notice 4 to apply the High Court
Civil Procedure Rules contained in the Civil Procedure Act and the Rules made under that Act
with necessary modifications in such cases. How to effect service of civil processes on the
Attorney General as the principal legal adviser of the Government is not provided for by the
Civil Procedure Act and the Rules made under it. There are, however, specific laws relating to
civil proceedings by and against the government in the High Court. These laws can be found in
the Government Proceedings Act, cap. 69, and the rules made under it. The relevant rules are
contained in the Civil Procedure (Government Proceedings) Rules, Statutory Instrument 69-1.
Mode of commencement.
Suits before the constitutional court are commenced by way of petition or reference.
 Interpretation of the Constitution is by way of a reference or petition.
In Attorney General v Tinyefuza, Kanyeihamba held t; that for the Constitutional Court to
claim and exercise the concurrent jurisdiction, the validity of that claim and the exercise of
the jurisdiction must be derived from either a petition or reference to have the Constitution or
one of its provisions interpreted or construed by the Constitutional Court.
 The procedure to be adopted in both cases was previously provided for under Legal
Notices.. A reference would be made under (Procedure) Rules, 1992 (Modification)
Directions, 1996. - Legal Notice No.3 of 1996, while a petition would be made under
Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure)
Rules, 1992, Directions, 1996 (Legal Notice No.4 of 1996). Therefore most cases
quote the Legal Notices.
In Uganda Journalists Safety Committee & Another V Ag. It was held;
That the Constitutional Court is thus a new Court created by Article 137 of The Constitution for
the sole purpose for the interpretation of the Constitution either following a reference under
Legal Notice No. 3 or by means of a Petition under Legal Notice No. 4 of 1996. The jurisdiction
283
of the Court to entertain both matters i.e. 'Reference' and 'Petition' are derived from Article 137
of The Constitution.
 However, the rules were revised in 2005 and brought under the same statutory instrument
thereby revoking the above Legal Notices. The new instrument is called Constitutional
Court (Petitions and References) Rules, 2005 (SI 91 of 2005). (Hereinafter Rules,)
Rule. 24 of The Constitutional Court (Petitions and References) Rules 2005
Revocation of Legal Notice No 3 of 1996 and Legal Notice No 4 of 1996
The Interpretation of the Constitution (Procedure) Rules, 1992

(Modification) Directions, 1996 and the Rules of the Constitutional Court
(Petitions for Declarations under article 137 of the Constitution) Directions,
1996 are revoked.
Who may apply?

 The right to petition the Constitutional Court is vested in every person who seeks
interpretation of the Constitution.
 Article 137 (3) of the constitution provides that;
A person who alleges that an Act of Parliament or any other law or anything in or done
under authority of any law or 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 redress where appropriate.
Phillip Karugaba V The Attorney General
Kanyeihamba; held that it is clear that the right to petition the Constitutional Court is vested in
every person in their own individual capacity.
 However, the petitioner need not be the person aggrieved.

In Ismail serugo v KCC & AG, the Supreme Court was emphatic that the right to present a
constitutional petition was not vested only in the person who suffered the injury but also in any
other person.
284
In Serapio Rukundo v Attorney General
Held;
To us, the question of locus standi is made very clear by the above provision of the article.
One only needs to allege any of the above and he or she will be entitled to petition the
Constitutional Court. He or she does not have to show any personal interest
Cause of action.
A petition must disclose a cause of action.
 In constitutional petitions brought under Article 137(3) of the constitution, a cause of
action is disclosed if the petition alleges the act or omission complained of and cites the
provision of the constitution which has been contravened by the act or omission
complained of and then prays for a declaration.
In Serapio Rukundo v Attorney General
Held; In deciding whether a suit discloses a cause of action, one looks ordinarily only at the
plaint and assumes that the facts alleged in it are true. By analogy therefore, to decide whether
the instant petition discloses a cause of action, one must look only at the petition and the affidavit
accompanying it and assume that the facts alleged therein are true.
In a number of cases Attorney General v Major General Tinyefuza, Constitutional Appeal

No.1 of 1997 (S.C.) and Serugo v. Kampala City Council, Constitutional Appeal No.2 of 1998
(S.C.) the Supreme court has expressed the view that in constitutional petitions brought under
Article 137(3) of the constitution, a cause of action is disclosed if the petitioner alleges the act or
omission complained of and cites the provision of the Constitution which has been contravened
and prays for a declaration.”
In the case of Major General Tinyefuza v Attorney General, Const. Appeal No.1 of 1997
(S.C), (unreported), this Court considered what is a cause of action in cases involving the
interpretation of constitutional instruments. It was said that:
285
‘A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to
prove in order to support his right to a judgment in court…’ (Per Oder, J.S.C.).
In the case of Serugo v Kampala City Council, Const. Appeal No.2/98 (S.C.), certified edition
1999-2000, it was observed that generally,
‘a cause of action in a plaint is said to be disclosed if three essential

elements are pleaded namely, pleadings
i) of existence of the plaintiff’s right,
ii) violation of that right and
iii) of the defendant’s liability for that violation.’
As for constitutional petitions, Mulenga, J.S.C. put it this way,
‘A petition brought under this provision (137(3) in my opinion, sufficiently discloses a cause
of action, if it describes the act or omission complained of and shows the provision of the
Constitution with which the act or omission is alleged to have been contravened by the act or
omission, and pray for a declaration to that effect.
The above cases have been quoted with approval in a number of cases including Baku Raphael
Obudra & Anor vs Attorney General, Const. Appeal No.1 of 2003. and Hon. Anifa
Bangirana Kawoya V Attorney General.
In Baku Raphael Obudra & Anor vs Attorney General, Const. Appeal No.1 of 2003.
Petitioners petitioned the Constitutional Court to declare that S. 67(3) of the Parliamentary
Elections Act provides that the decision of the Court of Appeal in election petitions is final,
unconstitutional, but their petitions were struck out for failure to disclose any cause of
action; hence this appeal.
Held;
286
Odoki; Agreed with Mulenga in Serugo and held that where a petition challenges the
constitutionality of an Act of Parliament, it sufficiently discloses a cause of action if it specifies
the Act or its provision complained of and identifies the provision of the Constitution with which
the Act or its provision is inconsistent or in contravention, and seeks a declaration to that effect.
A liberal and broader interpretation should in my view be given to a constitutional petition
than a plaint when determining whether a cause of action has been established
 The petition or reference must show on the face of it, that the interpretation of the
constitution is required. It’s not enough to allege merely that a constitutional provision
has been violated.
 The applicant must go further to show prima facie the violation alleged and its effect
before a question could be referred to the Constitutional Court.
Ismail Serugo Vs Kampala City Council & Attorney General, Wambuzi, CJ, as he then was,
that:-
“In my view for the Constitutional Court to have jurisdiction the petition must show, on
the face of it, that the interpretation of a provision of the Constitution is required. It is not
enough to allege merely that a Constitutional provision has been violated.”
Uganda Vs Atugonza Francis, held that:- “Article 137 (5) should be read in the proper spirit of
the Constitution. …The applicant must go further to show prima facie the violation alleged and
its effect before a question could be referred to the Constitutional Court.”
Dr. James Rwanyarare and Another v Attorney General ( (Ruling) (Constitutional Petition
No. 5 of 1999) ) HELD; It is clear that for this court to have jurisdiction "the petition must show,
on the face of it that interpretation of a provision of the Constitution is required. It is not enough
to allege merely that a Constitutional provision has been violated". See Ismail Serugo (supra)
Form and content of the petition.
 The mode of procedure is by a petition which is in the form specified in the schedule to
the Constitutional Court (Petitions and Reference) Rules No.9 of 2005 as provided for
under Rule 3(1) of the Rules.
287
 Under Rule 3(2) the petition shall state the right of the petitioner to present the petition,
state the grievance of the petitioner together with the statement of the grounds relied upon
to sustain the prayer in the petition, and shall be divided into paragraphs.
 It is a requirement under Rule 3(7)(a) that the petition be accompanied by an affidavit
setting out the facts relating to the grievance complained by the petitioner and the redress
prayed for in petition. Rule 12 further states that all evidence at the trial in favour of or
against a petition shall be by way of affidavit filed in Court.
Uganda Journalists Safety Committee & Another V Attorney General.
There was no affidavit was filed by the 1st Petitioner and court upheld an objection holding that
there Rule 3 sub rule 6 of legal Notice No. 4 ( now The Constitutional Court (Petitions and
References) Rules 2005), requires that:The petition shall be accompanied by an affidavit setting
out the facts relating to the grievance complained of by the petitioner and the redress prayed for
in the petition". The need for an accompanying affidavit to a petition has become all the more
important in view of the provisions in Rule 12(l) which provides "All evidence at the trial in
favour of or against the Petition shall be by way of affidavit read in open court".
THAT there cannot be a valid petition without an accompanying affidavit. The above provision is
mandatory.
This was emphasized In Re: Jim Muhwezi Katugugu and In Re: Constitutional Case No.6
of 1998
Where court held that; Rule 12 (1) of Legal Notice No.4 of 1996 provides for evidence for or
against a petition to be by-way of affidavit to be read at the trial in open court. In the result, we
hold that the affidavit evidence accompanying the two petitions is inadmissible. That leaves the
petitions unsupported by evidence which renders them incompetent. We accordingly uphold the
objection and strike out the petitions.
 Rule 3 (8) further provides that the petition shall also be accompanied by a list of any
documents on which the petitioner intends to rely.
In Dr. James Rwanyarare and Another v Attorney General ( (Ruling) (Constitutional

Petition No. 5 of 1999) )
288
There was a second point of objection that the petition lacks supporting evidence as required by
rule 3(6) of the Rules of this court (Legal Notice 4).
Held; Under rule 12(1) all evidence for and against the petition must be by affidavits. In my
view how much evidence and what type of evidence to be adduced by the parties to the petition
will vary according to the petition presented. For example where it is alleged that one's human
rights have been violated, then the evidence must disclose the nature of the violation. If the
allegation is simply that a certain law or the act of an individual is inconsistent with a provision
of the Constitution, then all that is required is to state in what way the law or the act is
inconsistent with a provision of the Constitution.
Court thus found that each petitioner swore and filed an affidavit in support of the petition. The
affidavits are similar in all material respects which contained evidence in support of the specific
allegations made. That there was no more the petitioners would and should have said by way of
evidence.
Per; J.P. BERKO, JA;
It was sufficient for them to state that certain sections of the Referendum and Other
Provisions Act are inconsistent with and contravene certain provisions of the Constitution
and also that the act of the Minister in requesting the Chief Justice to choose a panel of
Judges to frame the Referendum question under S. 4(2) the Referendum and Other
Provisions Act is inconsistent with provisions of the Constitution. It then rested on their
lawyers to argue the points of law in court. Whether the averments in the affidavits would
be sufficient to sustain the allegations in the petition go to the merit. Lack of evidence is
different from sufficiency of evidence. The argument of counsel clearly shows that he
does not appreciate this distinction. Accordingly I would overrule the second objection.
 The petition shall be presented by lodging it at the office of the registrar and shall be
lodged within 30 days after the dates of the breach complained of in the petition, 8 copies
shall be filed. This was provided for under Rule 4 of the Modifications to the
Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992,
Directions, 1996 (Legal Notice No.4 of 1996)
In this case the petition was lodged about four and a half months after the delivery of the
offending judgment. Counsel raised an objection that it was time barred.
HELD’
289
While we agree that in Constitutional matters particularly on questions of human rights, courts
should ignore minor irregularities, it is important that rules of procedure should be followed to
ensure smooth and predictable conduct of Constitutional petitions. Certainty and predictability
are some of the corner stones of justice.
The above rule provides that a petition shall be lodged within thirty days after the breach of the
Constitution complained of. The purpose of this rule is not hard to find. It takes into account
among others the importance of Constitutional cases which must be attended to expeditiously
and seeks to cut out stale cases. We do not therefore agree with Mr. Kayondo. SC that in
Constitutional matters there is no time limit. He did not give us any authority for that
proposition. We think that this petition offended against the said Rule 4(1). We therefore uphold
the first objection
Al Hajji Nasser Ntege Sebaggala V Attorney General
Court dismissed a petition which was filed after the expiry of 30 days; held that , the Petitioner
should have applied for extension of time by exemption and after pleading it.
Uganda Journalists Safety Committee & Another V Ag.

Held; We are not pursuaded by the argument of Mr. Kenneth Kakuru that in matters of
interpretation of the Constitution questions of limitation do not arise and that the time limit in
the rules should be disregarded. No authority was cited for such a bold statement. If the
legislature thought that time was irrelevant in such matters, it would not have enacted the
provision in Rule 4(1) of Legal Notice 4.
The petitioners had 30 days from the 19th December 1995 within which to file the petition. The
petition was in fact filed on the 27th May 1997. Consequently it was filed out of time and it is
time barred.
 Previously, courts held that the thirty days began to run the date (in case of an Act of
Parliament) when it became law and in case of any other "act" from the date it
occurred. However this caused hardships to litigants.
Attorney General V Dr. James Rwanyarare
The petitioners sought various declarations to the effect that the Political Parties and
Organizations Act 2002 is inconsistent with and contravenes various provisions of the
290
Constitution of the Republic of Uganda. The Attorney General filed an application raising
an objection that the petition was time barred.
Held;
In the infancy days of this court, we decided in a number of cases that a Constitutional
Petition filed outside the thirty days of limitation was incompetent. We held that the thirty
days began to run the date (in case of an Act of Parliament) when it became law and in case
of any other "act" from the date it occurred. This was the holding in the cases of James
Rwanyarare (supra), Hajji Sebbagala (supra), Sarapio Rukundo (supra) and Ismail Serugo
(supra). Almost all these cases were decided in 1997. However, the Constitutional Court
began to realise the problems being caused by the traditional literal interpretation of the
thirty days rule especially the hardship it caused in its application to human rights and
freedoms cases.
In Ismail Serugo vs. KCC and Another Constitutional Appeal, Supreme Court of Uganda
questioned the rule. Mulenga JSC;
The most conspicuous difficulty is in respect of petitions alleging that an Act of

Parliament or other law, is unconstitutional. Apart from the question of the starting
day for computing the thirty days, there is the high probability of the inconsistency
of such law being realised long after the expiry of the thirty days after enactment. In
my view the problem should not be left to be resolved through applications for
extension of time, as and when need arises. The appropriate authority should review
that rule to make it more workable, and to encourage, rather than appear to
constrain, the culture of Constitutionalism.
In our view. Rule 4 of Legal Notice No.4.1996 poses difficulties, contradictions and
anomalies to the enjoyment of the constitutional rights and freedoms guaranteed in the
1995 Constitution of Uganda. We wish to add our voice to that of the learned Supreme
Court Justices, (Mulenga, JSC and Oder, JSC) that this rule should be urgently revisited
by the appropriate authorities.
This court has accepted that until Rule 4 of Legal Notice No.4/1996 is successfully
challenged in the Constitutional Court, it is good law and must be applied.
291
 However, courts decided to calculate time from the day the petitioner conceived of
the breach.
In its decisions in Zachary Olum (1999) Mugerwa - Kikugwe (2000), Alenyo vs.
Attorney General (2001) and Nakachwa (2002) it was court decided that the thirty
days of limitation start to run from the day when the petitioner perceives the breach
of the Constitution
No. 5 of 1999) )
The third and last point of objection is that the petition is time barred. It was submitted by the
counsel for the Attorney General that rule 4(1) of the Rules of this Court (Legal Notice No. 4)
requires a petition to be lodged in a competent court within thirty days of the date of the alleged
breach.
HELD; J.P. Berko
In my view the time begins to run when the petitioners perceived the alleged breach or
inconsistencies in the Constitution. In the instant case the petitioners have alleged in their
affidavits that they became aware of the grave legal implications of the Constitution after
reading the provisions of the Referendum and Other Provisions Act, 1999 on or about
16/8/1999 and sought legal advice on the matters they are challenging. There is no
evidence to the contrary. They filed the petition on 6/9/99. Clearly it was filed within the
time prescribed by law. I therefore do not see any merit in the last point of objection.
As noted above in Ismail Serugo, Mulenga advised that owing to the hardships presented by the
rule, the appropriate authority should review that rule to make it more. The case of
Rwanyarare noted that this court has accepted that until Rule 4 of Legal Notice No.4/1996
is successfully challenged in the Constitutional Court, it is good law and must be applied.
292
In 2005, Legal Notices No. 3 and No. 4 of 1996 were revoked by Rule 24 of The Constitutional
Court (Petitions and References) Rules 2005 and the 30 day rule was not re-enacted. The rule
states;
Revocation of Legal Notice No 3 of 1996 and Legal Notice No 4 of 1996
The Interpretation of the Constitution (Procedure) Rules, 1992 (Modification) Directions,

1996 and the Rules of the Constitutional Court (Petitions for Declarations under article 137
of the Constitution) Directions, 1996 are revoked.
 Rule 4(3) The Constitutional Court (Petitions and References) Rules 2005 further
requires that at the time of filing court fees shall be paid and a deposit two hundred
thousand shillings as security for costs. Subrule 4 further stipulates that where subrule (3)
is not complied with, the petition shall not be received by the Registrar.
 On presentation of the petition, the petitioner shall serve , a copy of the petition on the
respondent and if the Attorney General is not a respondent , the registrar shall serve a
copy of the petition on the Attorney General, service of the petition shall be personal and
where such can’t be effected within five days , 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. And if the
Registrar is satisfied, may order that service be effected in any of the other ways
prescribed by Order V of the Civil Procedure Rules. Rule 5 The Constitutional Court
(Petitions and References) Rules 2005
Serapio Rukundo v Attorney General.
HELD; We should perhaps, point out that under Rule 5(2) of the Modifications To The
Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992, Directions 1996, (now
The Constitutional Court (Petitions and References) Rules 2005 the Registrar is required to serve
a copy of the petition on the Attorney General where the latter is not a party. Had the petition
293
been properly before this court, the Attorney General would have been served in accordance with
the above rule.
No. 5 of 1999) )
Rule 5(1) of the Rules of this Court requires the petitioner immediately upon presentation of the
petition to serve the respondent with a copy of the petition. The mode of service of petitions is
not provided for under Legal Notice No. 4. (Now The Constitutional Court (Petitions and
References) Rules 2005) However, this court is permitted by rule 13(1) of the Legal Notice 4 to
apply the High Court Civil Procedure Rules contained in the Civil Procedure Act and the Rules
made under that Act with necessary modifications in such cases. How to effect service of civil
processes on the Attorney General as the principal legal adviser of the Government is not
provided for by the Civil Procedure Act and the Rules made under it. There are, however,
specific laws relating to civil proceedings by and against the government in the High Court.
These laws can be found in the Government Proceedings Act, cap. 69, and the rules made under
it. The relevant rules are contained in the Civil Procedure (Government Proceedings) Rules,
Statutory Instrument 69-1. It is clear from the above rule that a document for service on the
Attorney General can be delivered to and received by a clerk or any other staff in the Attorney
General's office, but the service will not be complete until the Attorney General or a State
Attorney has endorsed an acknowledgement of service on the document. The requirement of
such acknowledgement is obviously to ensure that the document has been seen by a responsible
officer who is qualified to take action on the matter.
 A respondent on whom a petition has been served shall within 3 days after the service of
the petition on him or her furnish to the registrar an address to which any document may
be sent to the proceeding on the petition. Rule 6(1) The Constitutional Court (Petitions
and References) Rules 2005
 If the respondent wishes to oppose the petition, the respondent shall within 7 days after
service was done on him or her file an answer to the petition. The answer of the
respondent shall be accompanied by an affidavit stating the facts upon which the
respondent relies in support of his or her own answer. The respondent shall upon lodging
his or her answer serve a copy of the answer to the petitioner or his or her advocate.
Where the respondent requires further particulars of the petitioner, he or she shall apply
294
for particulars together with the answer. Rule 6 of The Constitutional Court (Petitions
and References) Rules 2005
No. 5 of 1999) )
HELD; Rule 5(1) of the Rules of this Court requires the petitioner immediately upon
presentation of the petition to serve the respondent with a copy of the petition. If the respondent
wishes to oppose the petition, then he is required by rule 6(3) to file an answer within seven days
after the service of the petition on him.
 If a respondent, upon whom a petition has been served, intends not to oppose the petition,
shall lodge a written notice of that intention at the office of the registrar at least 3 days
before the day appointed for trial, exclusive of the day on which the notice is filed. The
respondent shall upon lodging the notice, serve a copy on the petitioner or advocate. Rule
7 The Constitutional Court (Petitions and References) Rules 2005
Constitutional references
 Under Article 137(5) 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 Article 137(1).
 The court making a constitutional reference must first be satisfied that a prima facie case
exists or has been made out by the requesting party, that an interpretation of a provision
of the constitution is required. If the court comes to the conclusion that this is not
established prima facie, then no reference should be made to the Constitutional Court.
Uganda Vs Atugonza Francis, held that:- “Article 137 (5) should be read in the proper spirit of
the Constitution. …The applicant must go further to show prima facie the violation alleged and
its effect before a question could be referred to the Constitutional Court.”
In Hon Sam Kuteesa v Attorney General;

HELD; it follows, therefore, that in Article 137 (5) (a) and (b) the court deciding to make a
reference, must first be satisfied that a prima facie case exists or has been made out by the
295
requesting party, that an interpretation of a provision of the Constitution is required. If the court
comes to the conclusion that this is not established prima facie, then no reference should be made
to the Constitutional Court whether under Article 137 (5) (a) or (b). It cannot therefore be said
that Article 137 (5) (b) takes away the Independence of the courts.
 A Court before which a request for a reference is made must consider whether there is
merit in the application and that it falls within the letter and spirit of the relevant
provisions of the Constitution.
Rtd Col.Kizza Besigye vs Yoweri Museveni &Electoral Commission Supreme Court

Presidential Election Petition No.1 of 2006
HELD; Odoki CJ;

In my view, the provisions of Article 137(5) of the Constitution should not be invoked to
clog proceedings in Courts by referring questions of interpretation of the Constitution to
the Constitutional Court when the questions do not arise out of the particular proceedings,
and are necessary for the determination of the issues in the proceedings.
A Court before which a request for a reference is made is not merely a conduit to transmit
the question for a reference but must consider whether there is merit in the application
and that it falls within the letter and spirit of the relevant provisions of the Constitution.
Parties or counsel should identify issues in their cases or disputes requiring interpretation
of the Constitution early enough and lodge necessary petitions directly before the
Constitutional Court
Procedure
Rule 18(1) The Constitutional Court (Petitions and References) Rules 2005; provides;
Where a reference to the court regarding any question as to the interpretation of the
constitution under Article 137(5) of the constitution is made, the original court shall
submit the reference in terms of form 2 of the schedule to the rules, stating the specific
questions or issues to be answered or resolved by the court.
In Joseph Ekemu v Uganda, it was held that the procedure to apply on reference is laid down in
the Schedule to The Interpretation of the Constitution (Procedure) Rules, 1992 (Modification)
Directions, 1996. - Legal Notice No.3 of 1996. (now The Constitutional Court (Petitions and
References) Rules 2005) That the court making the reference must therefore comply this Legal
Notice.(Statutory Instrument)
 Reference to the Constitutional Court does not stay proceedings in the lower court.
296
The procedure to be followed when an issue of Constitutional interpretation arises during a trial
was dealt with by the Supreme Court of Uganda in the leading Judgment of Wambuzi - C.J., in
Civil Appeal No.7 of 1992 - Attorney General vs Milton Obote Foundation and Another. He
said, at page 30 of his judgment thus.
"I would direct that the original suit between parties be set down for hearing and
if at the hearing the parties wish to take any preliminary points for decision, then
the trial court shall frame the issue to be determined and shall also record the
evidence necessary to substantiate any claims made. If the trial court is satisfied
that the question raised involve a substantial question of law or if the court is so
requested by any of the parties it shall then make a reference of the issue to a
Constitutional Court provided that it is of the opinion that the issues are
sufficiently important to the proceedings to require such a reference"
HELD; It is clear from the above quotation,(by Wambuzi ) that when there is a case pending and
there arises an issue of Constitutional interpretation in it, one does not have to stop the
proceeding in that case and file a petition in the Constitutional court seeking to resolve that
Constitutional issue. The proper course is to proceed with the case as stated above and raise the
issue in the course of the hearing then a reference of the issue would be made after evidence
sufficient to substantiate the claim is recorded.
 Where the procedure for reference was not followed it is to be remitted to the trial judge
to comply with requirements of a reference.
In Constitutional Petition No.4 of 1997 John Arutu vs Attorney General, the

Magistrate Court made a reference to this court without following the above procedure. Court
remitted that reference to the trial court for it to proceed with the trial of the case and to make a
reference if necessary, in accordance with the above procedure.
This case was relied on in Serapio Rukundo v Attorney General where the judge stayed an
election petition as reference was made to the Constitutional Court. It was HELD; In the instant
case, the trial Judge should have proceeded to hear the election petition. And if in the course of
the hearing an issue requiring constitutional interpretation arose, the trial Judge should have after
297
recording the evidence sufficient to substantiate the claim, framed the issue and referred it to this
court for determination.
In the matter of Sheik Abdul Karim Sentamu Constitutional Reference No. 7 of 1998
Held; It seems to us that the trial Judge thought that if any party to the proceeding requests a
reference to the Constitutional Court, then the Court was bound to accede to his request. In our
view the duty to refer the question if a party so requests, is subject to a question as to the
interpretation of the Constitution arising in the proceedings before the court. However much a
party may request, he cannot have referred a matter that does not involve interpretation of the
Constitution. Nor can the party give the court jurisdiction which the court does not have by law.
Joseph Ekemu & David Kadidi Kamwada vs. Uganda Constitutional reference No. 1 of 2000
When the appeal came up for hearing, a constitutional question arose namely whether the
Inspector General of Government had the legal authority to institute criminal proceedings against
the appellants. The learned judge without hearing further evidence or arguments on the issue, and
without framing the question for determination by this court, made an order referring the matter
to this court under Article 137(5) of the Constitution.
HELD;
The procedure which the learned judge ought to have followed is laid down in the Schedule to
The Interpretation of the Constitution (Procedure) Rules, 1992 (Modification) Directions, 1996. -
Legal Notice No.3 of 1996. Rule 3(1) thereof states:
"3(1) 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 in terms of the form
specified in the schedule to these rules, stating the specific questions or issues to be answered or
resolved by the court." (now Rule 18(1) The Constitutional Court (Petitions and References)
Rules 2005) Also see Constitutional Reference No.7 of 1998, in The matter of Sheikh Abdul
Karim Sentamu and Another.
That he court making the reference must therefore comply with the above provision. Secondly, it
is trite that the court must record all the evidence or submissions in the case before making the
reference. The court would pronounce its decision on the case after this court has resolved the
298
Constitutional question. It is therefore clear that this matter is not properly before this court, as
the procedure for making a reference was not followed.
It is ordered that the matter be remitted to the trial judge to comply with the requirements of a
reference.
 The court may find that there is no question of interpretation if there is a legislation
which has tried to interpret the same issue.
Josephine Nanteza v Masiga George ((Constitutional Petition No. 9 of 1998)
This was a reference by Magistrate Grade II of Kiira Magistrates Court. The main issue for
determination was whether the defendant in that suit was a bona fide occupant within the
meaning of Article 237(8) of the Constitution.
HELD;
the relationship between the parties is now regulated by the provisions of the Land Act. Section
30(2) of the Act now defines the term "bona fide occupant." Parliament having defined what
bona fide occupant is, there is nothing that requires Constitutional Interpretation by this Court.
Accordingly, the matter is remitted to the trial court to deal with it in accordance with the
provisions of the Land Act.
CONCLUSION;
From the above, it is therefore true that the Constitutional Court can only entertain a matter that
is properly before it following the procedure provided for not only under the Constitution but
also under the relevant rules of procedure applicable to it. Failure to follow the law, procedure
and practice discussed above may result in the dismissal of the petition.
ASSIGNMENTS
For Election Petitions
Mutembuli Yusuf v …. Procedure.
Sematimba Peter ….Grounds for the petition
Mashate Magomu v E.C … Amendments in petitons
Akuguzibwe v Muhumuza … Bribery, vote
299
Adoa v Alaso … Burden and standard of proof
Wakayima Musoke v Ssebunya … inconsistent names
For EACJ Matters
Katabazi & Ors v A.G …Locus (who can make a reference?)
Modern Holdings v Kenya Ports Authority …Who can be a respondent?
Anita Among v A.G …Jurisdiction of the EACJ
Kamulali Jeremiah v A.G …Distinction between H.C & EACJ
Articles 27 & 30 of the East African Charter
Rule 21 & 24 of the EACJ Rules …Procedure of making a reference (i.e. it is by notice of
motion)
300

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SUMMARY PROCEDURE AND ALL APPLICATIONS UNDER O.36.

1. The scope of application of O.36

In Nakabago Cooperative society v Livingston Kyanga., Mpagi-Bahigeine J (as she then

 The basic rationale of summary procedure, is to enable a plaintiff obtain a quick

Held; Supreme Court; Jotham Tumwesigye JSC.

Rationale of Order 36 was considered in detail in BEGUMISA GEORGE v EAST

According to Lord Esher, M.R in Roberts v. Plant [1895] 1 QB 597:

What claims that can be brought under O.36?

 According to O.36 r.2, summary procedure is applicable in all suits:-

Order 36 is optional and only evoked by a party making a liquidated claim

“…if ascertainment of a sum of money even though it be specified or named

BEGUMISA GEORGE v EAST AFRICAN DEVELOPMENT BANK by Justice Irene

Definition of Liquidated demand

Kasule v Kawesa [1957] 1 EA 611

In Budai Coffee Hulling Factory Ltd v Eria M Babumba [1963] 1 EA 613

 A specially endorsed plaint must be accompanied by a valid affidavit, failure whereof a

Held: That there is no discretion to allow a claim to be brought by summary procedure if it is

SOLOMON BAGANJA v HENLEY PROPERTY DEVELOPERS LTD

Default judgement under O.36.

Valery Alia v Alionzi John

Valery Alia v John service of sermons was held to be mandatory.

Edison Kanyebwera v Pastori Tumwebaze

5. The defendant is required by summons issued pursuant to O. 36 r 3 to file an

Uganda Telecom Ltd v Airtel UG Ltd,

Pinnacle Projects v Business in Motion

Default judgment against government.

Rule 6 of the Civil Procedure (Government Proceedings) Rules enacts as follows:

(i) a defendant who files no defence cannot be heard

 O.36 r3 requires service of summons to be effected on to the defendants by summary

Francis Bwengye v Haki Bonera.

The application was filed by Chamber Summons instead of Notice of Motion

Century Enterprises Ltd v Greenland Bank;

Ready Agro Suppliers and 2 ors v UDB

 The affidavit in support must be deponed by a person who is in possession of the

Zimwe Hardware and Constructions Ltd V Barclays Bank UG Ltd

HELD; Justice Hellen Obura;

Acaali Manzi v Nile Bankt Ltd

Pinnacle Projects Ltd V Business in Motion Cosultance,

The time for filing the application

Zam Zam noel and Ors v Post Bank

Relying on the decision of Manyindo J. in Republic motors Ltd-Vs-Atlantic Decorators&

Pinnacle Projects Ltd V Business in Motion Consultants

Zamzam Noel v Post Bank.

Relied on the case of Republic Motors Ltd-Vs-Atlantic Decorators& General

GW Wanendeya v Stanbic Bank

Pinnacle Projects Ltd V Business in Motion Consultants

Musa Sbeity and Anor V Akello Joan

Venture Communications Ltd v Vertex Prudential Commerce

The applicant/defendant has four options, viz;

Magem Enterprises Ltd Vs. Uganda Breweries Ltd

Dr. Ahmed Kisule V Greenland Bank in Liquidation

There was an omni-bus application by notice of motion to be granted extension of time

Grounds in support of application. O. 36 r 7

Begumisa George v EADB; Irene Mulyagonja

Court then referred to some decisions

UNRA v Vivo Energy.

Per Lady JUSTICE IRENE MULYAGONJA

In the instant case, the judge then HELD;

HELD citing a number of authorities;

Per; LADY JUSTICE HELLEN OBURA

Peter Bibangamba v Mungereza

Justice Hellen Obura;

How can the application be contested (application for leave)?