Kimanje v Nakamanya & 2 Others (Miscellaneous Application 2202 of 2024) [2024] UGHCLD 274 (25 November 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) MISCELLANEOUS APPLICATION NO. 2202 OF 2024 (ARISING FROM MISC. APPLICATION NO.414 OF 2022) (ALL ARISING FROM CIVIL SUIT NO. 503 OF 2019)**

**PETER KIMANJE NSIBAMBI ::::::::::::::::::::::::::::::::::: APPLICANT**

## **VERSUS**

# **1. NAKAMANYA REBECCA 2. MPOZA RICHARD 3. SEMANDA AMDAN ::::::::::::::::::::::::::::::::::::::: RESPONDENTS BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA**

# **RULING**

# *Introduction;*

- *1.* Peter Kimanje Nsibambi hereinafter referred to as the applicant brought this application against Nakamya Rebecca, Mpoza Richard and Semanda Amdan hereinafter referred to as the respondents for orders that; - i) The ruling and orders of Hon. Lady Justice Aisha Naluzze Batala vide Miscellaneous Application No. 414 of 2022 be reviewed and/or set aside.

ii) Civil Suit No. 503 of 2019 be dismissed for failure to serve summons, to file a defence issued on the 13th of July 2019 upon the applicant by the respondents within 21 days from the date of issue as required by law.

## *Applicant's evidence;*

- 2. The application is supported by an affidavit in support of the application sworn by Peter Kimanje Nsibambi the applicant which briefly states the grounds of the application as follows; - i) On the l3th day of June, 2019 the Deputy Registrar of this Court issued summons to file a Defence against the Applicant and 3 others as the Defendants in Civil Suit No. 503 of 2019. - ii) The Respondents who are the Plaintiffs in Civil Suit No.503 of 2019 and their lawyers M/S Sekabanja & Co. Advocates did not serve the said summons upon the Applicant who is the 2nd Defendant in Civil Suit No. 503 of 2019.

- iii)The summons issued on the 13th day of June,2019, were never served upon the Applicant as required by law and it is now 2 (Two) years since they were issued by Court but were never served upon the Applicant. - iv) The Applicant filed Miscellaneous Application No. 414 of 2022, seeking for the dismissal of Civil Suit No. 503 of 2019 for non - service of summons to file a Defense dated l3th June,20l9 upon him. - v) That on the 21st day of June, 2024 at page 8 paragraphs 14, 15 and 16, Hon. lady Justice Naluzze Aisha Batala delivered a Ruling vide Miscellaneous Application No. 414 of 2023, dismissing the application on grounds that the Applicant made appearances in Court and even went ahead and filed a Defence to the claim and therefore, he could not be seen to insist that summons were not served upon him. - vi)It is an error or mistake apparentt on the face of the record, for the Learned Trial Judge to recognize and mmaintain a Written Statement of Defence which was

overtaken by events since it was filed in respect of summons which were invalidated and/or recalled by the Learned Deputy Registrar.

- vii) That Civil Suil No. 503 of 2023 abated as against the Applicant for failure to serve summons issued on the l3th day of June, 2019 upon him and no valid fresh summons were issued by Court. - viii) There is sufficient cause to have the Ruling vide Miscellaneous Application No. 414 of 2024 reviewed and/or set aside and to have Civil Suit No. 503 of 2019 dismissed as against the Applicant.

# *Respondent's evidence;*

4. The application is responded to through an affidavit in reply deponed by Ritah Nabukalu an Advocate of the High Court currently practicing with Sekabanja & Co Advocates and briefly states as follows:

- i) That on 1st September 2022, court issued fresh summons to file a Defence to be served upon the Applicant and Balamaze Herbert. - ii) That the Applicant was served with the summons to file a defence but deliberately refused to acknowledge receipt of the Summons. - iii)That the Applicant and Balamaze Herbert (1st Defendant) however from the perusal of the court record filed a Written Statement of Defence dated 5th October 2022 on ECCMIS. - iv) That the learned trial judge did not lack any material facts and was aware of the Ruling made by the Deputy Registrar on 15 December, 2022 thus delivering a well-reasoned judgement. - v) That the learned deputy Registrar left the trial Judge to determine Miscellaneous Application No. 414 of 2022 which was rightly determined by Hon. Lady Justice Naluzze Aisha Batala.

- vi) That the Applicant having already participated in the case by filing his Written Statement of Defence will not in any way prejudice the Applicant if the suit is determined on its merits. - vii) That this Honourable Court was fully aware of the material facts of the matter and came to a just and equitable decision to have the case heard on its merits.

## *Representation;*

5. The applicant was represented by Counsel Babirye Vicky of M/S Kimanje Nsibambi Advocates whereas the respondents were represented by Counsel Opio Moses and Counsel Donald Munanura of M/S Sekabanja & Co Advocates. Both Counsel filed written submissions which this court has considered in the determination of this matter.

## *Issues for determination;*

*Whether the ruling and orders of Hon. Lady Justice Aisha Naluze Batala vide miscellaneous application No. 414 of 2022 be reviewed and/or set aside?*

## *Resolution and Determination by court;*

- 6. *Section 82(a) if the Civil Procedure Act provides that any person considering himself or herself aggrieved: a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgement to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit*. - 7. Order 46(1) of the Civil Procedure Rules provides thereof that:- 1. Any person considering himself or herself aggrieved- a) By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or b) By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for a review of judgment to the Court which passed the decree or made the order. 2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party, except where the ground of the appeal is common to the applicant and the appellant, or when, being respondent, he or she can present to the appellate Court the case on which he or she applies for the review.

**8.** The grounds for review were enunciated in the case of **FX Mubuuke v UEB HCMA No 98 of 2005**: -**i) That there is a mistake or manifest or error apparent on the face of the record. ii) 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, iii) That any other sufficient reason exists.**

*Discovery of new evidence*

- **9.** A review is permissible on the ground of discovery by the applicant of some new and important matter or evidence which after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed. There must be sufficient evidence of diligence in getting all the evidence available. **(See; Bancroft and another v City Council of Nairobi [1971] 1 EA 151)** - **10.** Counsel for the applicant rightly cited the decision by my learned brother Justice Vincent Wagona in the case of **Kabagambe Grace v Mbabazi Resty & Anor M. A o.2 of 2022** for the

proposition that an application for review will only be made on strong grounds particularly if its effects will amount to reopening the application or case afresh. That this by implication means that the evidence that the applicant alleges was not produced at trial of the main suit should be evidence relevant to the matter adjudicated upon by court.

**11.** It is the applicant's case that on the 13th of June 2019, the learned Deputy Registrar of this honorable court issued summons to file a defence against the applicant and 3 others, however the said summons were never served on the applicant to date. That

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the respondent and their counsel applied for issuance of fresh summons which were granted on 30th August and endorsed on 1st September 2022.

- **12.** That later the learned Registrar in her ruling dated 1st December 2022 invalidated/recalled the summons she had issued on 30th August 2022 and endorsed on 1st September 2022 on grounds that she lacked jurisdiction to issue the same pending hearing and determination of miscellaneous application No. 414 of 2022 which subsequently invalidated the applicant's written statement of defence in Civil Suit No 503 of 2019 on record which had been filed in response to the summons issued on 30th August 2022 and endorsed by the deputy Registrar on 1st September 2022. This according to the applicant is a new and important matter of evidence which was previously overlooked. - *13.* However, in an application for review on the ground of discovery of new evidence like it is in the instant case, the applicant must demonstrate that or adduce sufficient evidence of due diligence in getting all the evidence available*. (See Bancroft and Another v City Council of Nairobi (supra).*

- 14. I have carefully perused both affidavits (in support and in rejoinder) of the applicant in this case and the applicant has failed to demonstrate in any way that diligence was done to get all this evidence but they could not. - 15. Secondly, be that as it may, the applicant's submission that the Written statement of defense filed in Court was pursuant to summons that had later on been recalled in a ruling by the learned Registrar in my view would have no impact to the ruling in M. A 414 of 2022. - 16. The written statement of defence was valid regardless of the subsequent recall by the Registrar. The subsequent recall would not render a written statement of defence invalid; the purpose of the summons had been fulfilled and the subsequent recall of the summons after filing the written statement of defence did not prejudice the applicant in any way. - 17. In that regard, court is doubtful whether the new and important matter of evidence would have any effect on the ruling of this Court in Miscellaneous Application No 414 of 2022. For the aforementioned reasons, this ground fails.

### *Error apparent on the face of the record*

- 18. For court to review its judgment or ruling there must be an error apparent on the face of the record. In the case of *Edison Kanyabwera v Pastori Tumwebaze SCCA No 6 of 2004* held that: -*"in order that an error may be a ground of 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 correctness. It must be an error so manifest and clear that no court would permit such an error to remain on the record."* - 19. The error apparent on the face of the record according to the applicant is that the learned trial judge recognized and maintained a written statement of defence filed in respect of summons endorsed by the Deputy Registrar on 1st September 2022 which summons were subsequently invalidated by the learned Deputy Registrar in a ruling dated 1st December 2022. - 20. With due respect to Counsel for the applicant, this is not an error apparent on the face of the record but rather the applicant is faulting the trial judge for having determine the matter wrongly and intends to re-open the matter through review to reconsider the

merits of the Miscellaneous Application No 414 of 2022. I believe such strategy and argument raised by Counsel for the applicant to make a case for an error apparent on the face of the record is an option for an appeal.

- 21. In addition, what the applicant alludes to as an error apparent on the face of the record was not even up for determination in Miscellaneous Application No 414 of 2022, simply put it was never anywhere on the record of Miscellaneous Application No 414 of 2022 to make a clear case for an error so manifest and clear that this court would not permit it to remain in the record. - 22. For the aforementioned reasons, this ground also fails and in the same spirit I find no sufficient reason to grant this application on grounds of an error apparent on the face of the record. - 23. In the premises, the application is dismissed with costs to the respondents.

### **I SO ORDER**.

### **NALUZZE AISHA BATALA**

# **Ag. JUDGE**

# **25th/11/2024**

## **Delivered Electronically via ECCMIS on the 25th day of**

### **November, 2024**