Kagumba & Another v Nandutu & 6 Others (Miscellaneous Application 314 of 2022) [2024] UGHC 648 (5 July 2024)

Full Case Text

THE REPUBLIC OF UGANDA IN THE HIGHCOURT OF UGANDA AT JINJA **MISC APPLICATION NO 314 OF 2022** (ARISING OUT OF MISC APPLICATION NO 340 OF 2018) (ARISING OUT OF CIVIL APPEAL NO 86 OF 2016) (ARISING OUT OF CIVIL SUIT NO 02 OF 2010)

1. JOEL KAGUMBA

2. NANYOGA PROSCOVIA KABANDA ::::::::::::::::::::::::::::::::::: **VERSUS**

1. NANDUTU KEVINA

2. SAMANYA MOSES

3. KIKONYOGO ERIYA

4. MUAKI SAUL

5. NSIGALIRA DAVID

6. MWANGUSHA GODFREY

7. KIRYA MOSES DOBO ::::::::::::::::::::::::::::::::::

# BEFORE HON LADY JUSTICE FARIDAH SHAMILLAH BUKIRWA **RULING**

## Introduction

This is an application by Notice of Motion brought under Sections 99 and 100 of the Civil Procedure Act, Section 33 of the Judicature Act Cap 13 and Order 52 r1& 2 and 46 1-2 of the Civil Procedure Rules for orders that:

- a. A slip order doth issue reviewing/ correcting the Ruling and Orders of His Lordship Hon Justice Tom Chemutai delivered in Misc. Application No.340 of 2018, in as far as it relates to the issue of "Costs". - b. The Applicants as a successful party in Misc Application No.340 of 2018 be clearly/manifestly awarded costs. - c. Costs of this Application be provided for.

#### **Background**

The Applicants are the successful parties in Miscellaneous Application No.340 of 2018 which was dismissed by His Lordship Hon Justice Tom Chemutai vide a Ruling delivered on 13th September, 2022. In that Ruling, the Trial Judge issued two conflicting orders that is,

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"This Application is hereby dismissed with costs" and;

"Each party is to bear its own costs" hence this Application.

## **Applicant's Evidence**

This Application is supported by the Affidavit of Joel Kagumba, the 1st Applicant and he avers that;

- That the 1st and 2nd Applicants are the successful Respondents in Miscellaneous $a)$ Application No 340 of 2018, which was dismissed by His Lordship Justice Tom Chemutai vide a Ruling delivered on 13th September 2022. - That however, the Trial Judge inadvertently issued two conflicting orders to wit; $b)$ "this Application is hereby dismissed with costs" and "Each party is to bear its own costs" - c) He avers that his lawyer has informed him that he cannot extract an Order with two orders as to costs. - d) That the mere fact that the Trial Judge first issued an order dismissing the Application with costs means that he intended to award the Applicants with costs. - That the two conflicting orders as to costs detrimentally affect the Applicants as $e)$ the successful party. - That the Applicants as a successful party in Misc Application No 340 of 2018 are $f$ entitled to costs as the same usually follow the events. - That the Respondents ought to be condemned to costs basing on the fact that it $g)$ took the 1 year and 11 months to file Misc Application No 340 of 2018 which seriously prejudiced the Applicants by the delay and even the balance of justice in their favour. - h) That the Honourable Court ought to make a Slip Order amending the Ruling by striking out the order for each party bearing its own costs so as to address and rectify such omission and give effect to the Court's clear/ manifest intention which would allow the Applicants recover their costs in Misc Application No.340 of 2018.

The Respondents did not put in a Reply.

#### Representation

The Applicants were represented by Counsel Muchake Musa of Muchake & Co. Advocates while Songoni Mustapha represented the Respondents.

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#### **Submissions**

The Applicants filed written submissions which have been considered by court in making this Ruling. However, the Respondents did not file any written submissions in regards to this matter.

Counsel for the Applicants cited section 99 of the Civil Procedure Act which states that;

"clerical or mathematical mistakes in judgements, decrees or orders or errors arising from any accidental slip or omission may at any time be corrected by the court either of its own motion or on the application of any of the parties."

He further cited the case of Hon Obiga Kania Vs Wadri Kassiano Ezati & Anor Misc Application No.142 of 2017 in which Hon Justice Vincent Okwanga observed that;

"Section 99 of the Civil Procedure Act, caters for correction/rectification of errors or omissions by court in any Judgements, Orders, Decrees or error arising in them from accidental slip to give effect to the true and express intention of the Court."

Counsel submitted that in the instant case, it is clear that there is a primafacie slip, error and/or mistake in the Ruling delivered by His Lordship Hon Justice Tom Chemutai on 13th September, 2022 in Miscellaneous Application No 340 of 2018 where he gave two conflicting orders to wit; "this Application is hereby dismissed with costs" and "Each party is to bear its own costs".

He further submitted that Counsel for the Applicants as the successful party cannot extract an Order with two orders as to costs. The two conflicting orders as to costs detrimentally affect the Applicants as costs usually follow the events.

## **Analysis of Court**

Section 99 of the Civil Procedure Act provides that;

"Clerical or mathematical mistakes in judgements, decrees or orders or errors arising in them from any accidental slip or omission may at any time be corrected by the court either on its own motion or on the application of any parties."

The slip rule does not allow or permit a court to give an order which alters the judgement or orders made earlier. It is for purposes of correcting clerical errors and giving effect to the judgement of the court.

$\cancel{K}$

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In Lakhamshi Brothers Limited versus R. RaJa & Sons [1966] EA313 (cited in Constitutional Application NO.1 OF 2016 John Sanyu Katuramu and 49 Others Versus Attorney General), at page 314 paragraph E-F, Sir Charles Newbold, P. made the following observation;

"Indeed there has been a multitude of decisions by this Court on what is known generally as the slip rule, in which the inherent Jurisdiction of the Court to recall a Judgement in order to give effect to its manifest intention has been held to exist. The circumstances however, of the exercise of any such Jurisdiction are very clearly circumscribed. Broadly these circumstances are where the court is asked in the application subsequent to Judgement to give effect to the intention of the Court when it gave its Judgement or to give effect to what clearly would have been the intention of the Court had the matter not inadvertently been omitted. I would here refer to the words of this Court given in the Rainga case (2) [1965] E. A. at P. 703) as follows: "A Court will, of course, only apply the slip rule where it is fully satisfied that it is

giving effect to the intention of the Court at the time when Judgement 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."

This instant Application seeks to rectify the two contradicting orders made by His Lordship Tom Chemutai while delivering his Ruling. The two orders he made are;

1. This Application is hereby dismissed with costs.

Each party is to bear its own costs.

The Slip Rule as stated in the case of Kaboora Enterprises & Others Vs Modpart Limited & Others Misc Application No.1455 of 2021, Justice Stephen Mubiru is that its provision only covers genuine slips or omissions in the wording of a handed down judgement which were made by accident for instance the misdescription of a party or the incorrect insertion of a date. The slip rule is only applicable to give effect to the court's thoughts or intentions at the time of making the order and not additional thoughts arising after it is handed down. It cannot be used to correct substantive mistakes, for example an error in law. It cannot be invoked to add a provision having substantive effect which was not in the contemplation of the parties or the court at the hearing. Substantive errors can only be corrected through the appeal process. The rule applies only to situations where if the amendment requested was not effectuated, the

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original order would not represent the intended order of the court. The slip rule can only be applied where the proposed amendment is one about which no real difference of opinion can exist.

It is therefore in my opinion that the Applicants have demonstrated that there was an accidental slip.

It is my observation that the order, "The Application is dismissed with costs" was an order intended to mean that the Applicants as the successful parties are awarded costs by the Respondents. It was therefore a slip where the Trial Judge added another order that "Each party should bear its own costs." I am therefore convinced that the Trial Judge intended the Applicants to recover costs from the Respondents.

I will therefore allow this application and order for the ruling to be adjusted accordingly to provide that;

"This Application is dismissed with costs to the Respondents".

I so order.

**JUDGE**

LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI. Ruling delivered on ...................................

Iggunba Joel 0752-957188 Osth-07-2024