Kabwonkyezo & Another v Nabasa & 3 Others (Miscellaneous Application 207 of 2024) [2025] UGHC 63 (17 February 2025)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA **MISCELLANEOUS APPLICATION NO.0207 OF 2024**

#### (Land Civil Suit No.092 of 2024 Formerly HCCS NO.68 OF 2022 at Mubende)

### 1. KABWONKYEZO SYLIVIA

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2. NYAKATO ROSETTE

### **VERSUS**

**1. NABASA FLORENCE**

2. LUTEMBESA FRED

3. LUBEGA YOSAM

}:::::::::::::::::::::::::::::::::::::

# 4. TADOOBA JOYCE

# BEFORE HON. MR JUSTICE KAREMANI JAMSON. K

#### **RULING**

This is a ruling in an application that was brought by a notice of motion under Sections 82 and 98 of Civil Procedure Act, Section 33 of the Judicature Act, and Order 46 Rules $1(a)$ , 2 & 8 and Order 52 Rules 1,2 & 3 of the Civil Procedure Rules.

It seeks the orders of this court that:

- (i) The consent judgment dated $3rd$ July 2024 be reviewed and/or set aside - (ii) Costs of this application be provided for

The application is supported by the Affidavit deponed by one Kobwonkyezo Sylivia the applicant which sets out the grounds of the application but briefly that:

1. The applicant on the applicant is inter alia a daughter of the late Fred Kyabakyenyi who was the son of the late Beatrice Kyamulunga who was the former owne of the land comprised in Singo Block 596 plot 10 LRV 1632 Folio 12 AT Kyamakola measuring 200 hectares (herein referred to as the suit land).

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- 2. The applicants are beneficiaries under the estate of the late Beatrice Kyamulunga and as such entitled to the portion of the funds/monies amounting to UGX 370,000,000= being paid by the 1st, 2nd and 3rd respondents under a consent judgment dated 3rd July 2024. - 3. That although the applicants are not parties to the main suit, they consider themselves aggrieved by the consent judgment because as beneficiaries under the estate of Beatrice Kyamulunga which is being managed by the 1st respondent as an administrator they ought to receive their portion of money belonging to their late father Kyabakyenyi and their late mother Bireete Merab also on behalf of other beneficiaries. - 4. That in the said consent judgment, the $1$ st respondent has already received UG. X $20,000,000=$ which is she did not share with them as children of the late Kyabakyenyi and she was yet to receive all the funds by 30th October 2024. - 5. That the respondent as an administrator of the estate of the late Beatrice Kyamulunga deliberately refused to give material evidence/information regarding other beneficiaries supposed to get a share on the estate which is material before executing the said consent judgment. - 6. There are even other beneficiaries who are not considered in sharing on the said money in the consent judgment and as such they are also aggrieved by the said consent judgment. - 7. It is in the interest of justice and fairness that the said consent judgment be reviewed and/or set aside such that this case can be heard on its merits.

The respondent filed an affidavit in reply to oppose the application. The grounds for the opposition are:

1. That the application discloses no cause of action against them and is misconceived and that they will raise a preliminary objection.

2. That the applicants are not beneficiaries of the estate of the late Beatrice Kyamulunga but to the estate of late Kyabakyenyi.

3. That the applicant is a daughter of late Fred Kyabakyenyi but not a beneficiary of the estate of late Beatrice Kyamulunga.

4. That the consent judgment was endorsed by the Honourable court and that more than shs.20.000.000= i.e. shs.30.000,000= has already been paid.

5. That the applicants are not entitled to 200 hectares of land and hence not beneficiaries to the estate in issue.

uldw

# **Background**

The first respondent who was a plaintiff in the main suit filed a civil suit against the $2nd$ , $3rd$ , $4th$ respondents and one Rose Namala who were the defendants. The $1st$ respondent who was the plaintiff and the 2nd, 3rd and 4th respondents entered a consent judgment save the Rose Namala who was the 4th defendant.

The applicants who were not part of those proceedings have now applied for review of the consent judgment by this court in that matter on the grounds that they are beneficiaries of the estate which is a subject of the consent judgment and hence are aggrieved by the same consent judgment.

### Representation

The applicants were represented by Mr. Tumwesigye Allan of M/S Lubega & CO. Advocate.

The respondents are represented by $M/S$ SKAAR Advocates.

### Laws relied on

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Section 82 of the Civil Procedure Act provides as follows:

"Any person considering himself or herself aggrieved by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or

(i) By a decree or order from which no appeal is allowed by this Act

may apply for review of judgment to the court which passed the decree or made the order, and the court may make such orders on the decree or order as it thinks fit."

**Section 98 of the Civil Procedure Act provides as follows:**

"Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court"

# **Section 33 of Judicature Act provides as follows:**

"The High Court shall in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim property brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those avoided".

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# **Order 46 Rule 1 of Civil Procedure Rules** provides as follows:

"Any person considering himself or herself aggrieved-

(a) by a decree or order from which an appeal is allowed but from which no appeal has been preferred or

(b) by a decree or order from which no appeal is hereby allowed,

and who from the discovery of a new and important matter or evidence which after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason desires to obtain a review of judgment to the court which passed the decree or made the order."

# According to the case of **Combined Services Ltd Vs Attorney General HCMA 200 OF 2009 at Commercial Court** it was held that the basic tests are:

- (a) Whether the applicant is aggrieved, - (b) Whether no appeal has been preferred, - (c) Whether there is some mistake or error apparent on the face of the record - (d) Whether there has not been unreasonable delay.

# Whether the applicants are aggrieved

According to Section 82 of the Civil Procedure Act and Order 46 of the Civil **Procedure Rules** the applicant must be aggrieved.

It is the applicant's contention that they are beneficiaries of the estate of the late Beatrice Kyamulungu which estate was in dispute in the suit where a consent judgment was entered by the respondents. That they are entitled to a share on the funds agreed upon in the consent judgment.

In the case of Mohammed Allibhai vs W. E. Bukenya & Anor Supreme Court of **Uganda Appeal No.56 of 1996 (unreported)** it was held that the person must have suffered a legal grievance and the principle applies depending upon the peculiar circumstances of each case.

From the facts of this case the 1st applicant is alleged to be a daughter of the late Fred Kabakyenyi who was also a son of late Beatrice Kyamulunga the former owner of the land which is a subject of the consent judgement.

wan

I have looked at the affidavit in support of the application and the annexures to the same, I have not come across any evidence to prove to me the applicants are beneficiaries of other estate of the late Beatrice Kyamulunga. The 1st applicant alleges that she is a daughter of late Fred Kyabakyenyi alleged to be the son of the late Beatrice Kyamulunga. The second applicant does not show his source of benefit to the estate in issue.

It is the evidence of 1st respondents that she holds letters of administration to the estate of late Beatrice Kyamulunga. The same letters of administration were not challenged during the time of acquisition if the applicants were not listed among the beneficiaries as they claim. They ought to have raised the same issue in that matter of the application for the letters of administration.

It is also not clear how the review of the judgment will benefit the applicants who were not party to the original suit and setting aside of the same will still not make them party.

It is my considered position that if the applicants have any cause of action against anyone the same can be presented in form of an independent suit.

From the facts of this case the applicants are not party to the civil suit which gave rise to the consent judgment and are therefore not aggrieved by the same consent judgment within the meaning of an aggrieved party in the circumstances of this case. They do not have the locus to present this application to review the consent judgment in issue.

This application is dismissed with cost.

Wan

KAREMANI JAMSON. K **JUDGE** 17.02.2025