Khainza & 4 Others v Mweru (Miscellaneous Application 437 of 2023) [2025] UGHC 122 (19 March 2025)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

**MISCELLANEOUS APPLICATION NO. 0437 OF 2023**

(Arising from Miscellaneous Civil Application No. 331 of 2023)

(Arising from Miscellaneous Application No.318 of 2023)

(Arising from Miscellaneous Application No. 317 of 2023)

(Arising from Civil Suit No. 68 of 2023)

1. KHAINZA MILLY

- 2. MAYOKA KEVIN DANIEL - 3. BUKOMA FELIX SAUL - 4. NAMBUYA AGATHA - 5. MABONGA FREDRICK WANYERA :::::::::::::::::::::::::::::::::::: (Administrators of the Estate of the Late Mwaule Davis Wanyera)

# **VERSUS**

MWERU MIKE HENRY ::::::::::::::::::::::::::::::::::::

## BEFORE: HON. JUSTICE LUBEGA FAROUQ

### **RULING**

#### Introduction: 1.

This application was brought by way of notice of motion under section 98 $2.$ of the Civil Procedure Act Cap 282 and order 52 rules 1, 2 & 3 of the Civil Procedure Rules SI 71-1 for prayers that-

- a. Order be issued setting aside the orders in Misc. Civil Application No. 331 of 2023 which reviewed the orders of the Deputy Registrar in Misc. Civil Application No. 318 of 2023; and - b. Costs of this application. - The grounds on which this application was premised are contained in the 3. supporting affidavit and the affidavit in rejoinder sworn by the $1^{st}$ Applicant, with authority to swear on behalf of the rest of the Respondents, briefly states that - a. The Respondent filed Misc. Application No. 331 of 2023 seeking an order varying and/or setting aside a court order which had earlier been issued by the deputy registrar on the $13<sup>th</sup>$ day of October 2023 in Misc. Application No. 318 of 2023; - b. The deputy registrar entertained the said application and on $21<sup>st</sup>/11/2023$ , he issued an order varying the orders he had earlier made in Miscellaneous Application No. 318 of 2023; - c. By varying his own order, the deputy registrar did not have jurisdiction to do so thereby occasioning an illegality which this court should not condone; - d. The order which the deputy registrar varied and/or reviewed did not even arise from any error and/or mistaken impression but from a consent which the parties and their lawyers had reached and communicated to court; - e. By reviewing, varying or setting aside the said order in the manner that he did, the deputy registrar negated the order being sought by the Respondent in HCCS No. 68 of 2023. - The Respondent opposed this application through his affidavit in reply 4. which has been considered in the determination of this application and briefly states that-

- a. The deputy registrar only varied the orders and did not review the same as the application was for variation and not review as the Respondent did not consent to any application; - b. The Applicants did not raise the issue of jurisdiction during the hearing of the Misc. Application No. 331 of 2023 and as such are abusing court process and only intended to frustrate him; - c. HCCS No. 68 of 2023 has not been heard and as such the prayers therein have not yet been determined and they cannot be determined in the said miscellaneous application; - d. Varying of the order only maintains the status quo as at institution of the suit which was the prayer in Misc. Applications No. 318 & 317 of 2023, therefore no miscarriage of justice occasioned to the Applicants.

$5.$ Legal representation

- M/s Marques Advocates represented the Applicants while counsel 6. Kanyago Agnes appeared for the Respondent. - $7.$ **Submissions** - During the hearing of this application, schedules were granted to file 8. written submissions. Both counsel complied.

### 9. **Analysis of court**

Before I delve into the determination of the application, I will consider the 10. preliminary objections raised by the Respondent first as below.

### 1<sup>st</sup> preliminary objection $11.$

Counsel for the Respondent submitted that this application is barred in 12. law because the Applicant invoked the inherent powers of court under section 98 of the Civil Procedure Act Cap 282 seeking to set aside the orders of the Deputy Registrar yet there is law providing for what course of action to be taken by a person who is aggrieved by the orders of the registrar.

$\overline{3}$

Counsel added that order 50 rule 8 of the Civil Procedure Rules SI 71-1 13. provides that-

# "Any person aggrieved by the order of a Registrar may appeal *from the order to the High Court."*

- Counsel further submitted that invoking section 98 of the Civil Procedure 14. Act is saved for instances where there is no specific procedure provided for as was held in **Anatolia Enterprises LTD V. Tweyambe Esau t/a Crane** Force Auctioneers HCMA No. 210 of 2015. - In reply, counsel for the Applicants submitted that the instant application 15. is seeking to cure an illegality by setting aside the resultant order that was issued by the registrar on account of being a nullity in law and to do so, the Applicants did not have to proceed under Order 50 rule 8 of the Civil Procedure Rules. - Counsel added that the Respondent has not cited any law or authority 16. which prescribes that a null or irregular order made by the Registrar can only be appealed against and cannot be set aside and this court is clothed with inherent powers under section 98 of the Civil Procedure Act and order 52 Rules 1 & 3 of the Civil Procedure Rules. - Counsel further submitted that the ruling of this court in **Oscar Andreas** 17. Cardenas Espinosa V. Nakimuli Mariam Cardenas Misc. Application **No. 0112 of 2017**, Hon. Mr. Justice Henry Kawesa set aside an order for review by the Registrar which had been given in error on grounds that it was nullity and that the facts are similar to those in this application and therefore the preliminary objection lacks merit. - Determination of court 18. - I have examined the entire order 50 of the Civil Procedure Rules and it 19. only provides for the recourse of appeal from the orders of the registrar. - Order 50 rule 8 of the Civil Procedure Rules provides that-20.

"Any person aggrieved by any order of a registrar may appeal from the order to the High Court. The appeal shall be by motion on notice."

- That provision of the law provides for only the recourse of appeal where a 21. party is aggrieved with the decision of the registrar. - By implication, it indicates that the decision of the registrar can only be 22. challenged through an appeal. However, contrary to what is provided for under Order 50 of the Civil Procedure Rules, this application was brought under section 98 of the Civil Procedure Act and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules. Hence, it would be interpreted not to be an appeal contrary to Order 50 rule 8. - Order 52 rule 1 provides that-23.

"All applications to the court, except where otherwise expressly provided for under these Rules, shall be by motion and shall be *heard in open court."*

Section 98 of the Civil Procedure Act under which this application is 24. premised, provides that-

> "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 14 (2) (c) of the Judicature Act Cap 16 on the jurisdiction of the 25. High Court provides that-

> "Subject to the Constitution and this Act, the jurisdiction of the High Court shall be exercised- (c) where no express law or rule is applicable to any matter in issue before the High Court, in conformity with the principles of justice, equity and good conscience."

- On proper scrutiny of the above provision, it is suggestive that the 26. jurisdiction of the High Court can only be exercised where no express law or rule is applicable to a matter. - The application before me now arises from the decision of the registrar. 27. Order 50 of the Civil Procedure Rules which provides for the powers of the

ς

registrar, provides that the decision of the Registrar can only be challenged by an appeal under rule 8 of the same order.

- It follows therefore, that section 98 of the Civil Procedure Act can only be 28. invoked where there is no express law or rule on the matter before the High Court. - It is important to highlight that when initiating any case in court, the 29. primary law governing the specific cause of action should take precedence. - Counsel for the Applicants argued that the current application aims to 30. rectify an illegality by overturning the order issued by the registrar, which they contend is a nullity in law. They asserted that the Applicants need not proceed under Order 50, Rule 8 of the Civil Procedure Rules to achieve. this. However, with all due respect, I do not concur with counsel's position. - Order 50 clearly delineates the powers of the Registrar. Any individual 31. aggrieved by a decision resulting from the exercise of those powers may only pursue an appeal under Order 50, Rule 8. - In the circumstance, the $1<sup>st</sup>$ preliminary objection is upheld. 32. - The $2^{nd}$ preliminary objection. 33. - Counsel for the Respondent submitted that this application is barred in 34. law as one cannot review what is already reviewed and therefore, the next course of action is an appeal and not an application to set aside the said orders.

### **Determination of court** 35.

- As previously discussed, there is no legal provision for the High Court to 36. review the orders of the Registrar. Instead, the law stipulates that an appeal must be initiated by way of a notice of motion under Order 50, Rule 8 of the Civil Procedure Rules. - The $2^{nd}$ preliminary objection is upheld 37.

- Having upheld the two preliminary objections mentioned above, this 38. application is hereby dismissed for being filed under the incorrect provisions of the law. - The only remedy which the Applicants are entitled to is by way of an appeal 39. under Order 50 rule 8 of the Civil Procedure Rules. - In light of the above, this Application is dismissed with costs to the 40. Respondents.

I so order.

LUBEGA FAROUO Ag. JUDGE

Ruling delivered via the email of the Advocates of the parties on the 19<sup>th</sup> day of March, 2025