Muhenda v Mirembe (Miscellaneous Application 63 of 2015) [2024] UGHC 1027 (30 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **MISC. APPLICATION NO. 0063 OF 2015 (ARISING FROM CIVIL SUIT NO. 16 OF 2014)**

#### **DAVID MUHENDA**

6 **(Suing as Administrator of the Estate of the Late KeziaKanyomozi Rujumba (Deceased) ::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

#### 9 **HUMPREY MIREMBE**

**(Administrator of the Estate of**

**the late Margaret Kamuje (Deceased) :::::::::::::::::::::::::::: RESPONDENT**

### **BEFORE: HON. JUSTICE VINCENT WAGONA RULING**

#### 15 **Introduction:**

This application was filed in court on 19th November 2015 by way of Notice of 18 Motion under Order 46 rules 1 & 1 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act seeking the following:

- 1. That the order dismissing Civil Suit No. 16 of 2014 by the Hon. Justice Mr.

Duncan Gaswaga dated 14th 21 of October 2015 be reviewed and or set aside.

- 2. That High Court Civil Suit No. 16 of 2014 be heard and determined on merits. - 3. That the costs of taking out the application be provided for.

### **Grounds of the Application:**


The motion is supported by the affidavit of David Muhenda the applicant stating as 3 follows:

- 1. The applicant instituted Civil Suit No. 16 of 2014 against the respondent over the conduct of an execution done on 5th February 2003 by which the late 6 Margaret Kamuje took possession of the house and land in dispute. The fact that execution was done in 2003 is contained in the ruling of the Supreme Court delivered on 15th May 2014 at page 22. - 9 2. When Civil Suit No. 16 of 2014 was cause listed for hearing, learned counsel for the respondent raised a point of law contending that the suit was barred by limitation. In the ruling delivered on 14th October 2015, the Hon. Justice 12 Duncan Gaswaga ruled that execution could not have been done in 2003; that the execution was done in 2001 and at the time the suit was filed for recovery of the suit land, 12 years had lapsed in 2013. - 15 3. The said ruling was made on account of a mistake and error apparent on the face of the record of court since the Supreme Court had noted that execution was done in 2003. - 18 4. The failure and or refusal to accept that the execution affecting the estate of the late Kezia Rujumba was done in 2003 is an error and mistake on the part of court. It is fair and just that the application for review is granted so that 21 substantial justice is done without undue regard to technicalities.

#### **Reply of the Respondent:**

The application was opposed by *Humprey Mirembe (Respondent)* through an affidavit in reply filed on 22nd 24 January 2019 where he deposed as follows:


- 1. The respondent was an administrator of the estate of the late Margaret Kamuje. The applicant seeks to resurrect a nonstarter which should be left to 3 rest. - 2. The late Kamuje prior to her death was a decree holder in MFP. 48 of 1976 (Magret Kamuje v Isreal Karasuma) which judgment still stands to date. 6 While aware of the same, the applicant lodged objector proceedings in February 1993, and later an appeal to the High Court and Supreme Court which were all dismissed and court ordered execution of the decree in MFP. 9 48 of 1976. - 3. The execution of the decree was done in 2001 the warrant of vacant possession having been signed on 4th June 2001 and executed on 6th August 2001. The 12 subsequent execution referred to by the applicant of 2003 has no bearing on the findings of the judge in Civil Suit No. 16 of 2014. - 4. The motion at hand has no merit and is a waste of court's time; it should be 15 dismissed with costs. - **Representation and Hearing:**

*Mr. Kaija* appeared for the applicant while *Mr. Bwiruka Richard* appeared for the 18 Respondent. A schedule to file written submissions was issued out to both counsel and only learned counsel for the applicant complied. I have thus considered the said submissions and the pleadings of the parties.

21 **Issues***:*

**Whether there is a mistake or an error apparent on the face of the court record** 24 **in Civil Suit No. 16 of 2014 to warrant a review.**

**Submissions for the Applicant:**


The trial Judge Hon. Justice Duncan Gaswaga in his ruling noted that execution was done in 2001 and not 2003 thus dismissing his case on the ground that it was time

- 3 barred. This is an error apparent on the record of court, as there are returns from the Supreme Court showing that execution was done in 2003 and not 2001. Court should on such mistake be pleased to set aside the ruling of the trial judge and re-instate - 6 Civil No. 16 of 2014.

#### **Consideration by Court:**

9 Section 82 of 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*

- 12 *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 judgment to the court which passed the decree or* 15 *made the order, and the court may make such order on the decree or order as it thinks fit***".** - 18 Section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules do not define what amounts to *"person considering himself or herself aggrieved".* In *In Re Nakivubo Chemists (U) Ltd [1979] HCB* an aggrieved party for purpose of 21 review was defined as a person who has suffered a legal grievance.

The applicant herein was the plaintiff in Civil Suit No. 16 of 2014. His grievance is 24 that his case was dismissed by the trial court on ground that the suit was barred by limitation, whereas not. It was contended that the trial court in reaching this conclusion, did not consider the return of execution from the Supreme Court wherein


it was indicated that the respondent was put in possession in 2003, and not 2001 as found by the trial court. That this was an error apparent on court record which ought 3 to be reviewed and set aside.

Order 46 of the Civil Procedure Rules, limits review to three grounds, that is: (a) that 6 there is some mistake or error apparent on the face of the record; (b) discovery of new and important evidence that could not be produced during the hearing and the making of the decision; (c) any other sufficient cause. The applicant herein contends

9 that there is a mistake or error apparent on the face of the record.

The Civil Procedure Rules do not define what constitutes a mistake or error apparent 12 on the face of the record. In *Levi Outa Vs. Uganda Transport Company [1995] HCB 340* court defined what constitutes as error apparent on the face of the record thus: *"the expression 'mistake or error apparent on the face of the record' refers*

15 *to an evident error which does not require extraneous matter to show its incorrectness. It is an error so manifest and clear that no court would permit such an error to remain on the record. It may be an error of law, but law must be definite* 18 *and capable of ascertainment."*

In the Indian case of *Mr. Satish Kumar Vs. Chief Secretary, RA No. 51/2013 and*

- 21 *MA No. 688/2013* mistake or error apparent on the face of the record was described thus: *"The term 'mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require* - 24 *detailed examination, scrutiny and elucidation either of facts or the legal position. If the error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be an error apparent on the face of the record for*

27 *purposes of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it*

**5 |** P a g e

*differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken* 3 *by the Court/Tribunal on a point of law or fact."*

- A mistake or error apparent on the face of the record must be glaring on the face of 6 the court. It should not require an extensive evaluation of the law and the evidence in order to find and see it. It should not be about the legality or validity of the judgment or decision of court in relation to the laws applicable on the merits. Its 9 resolution should not result in the court sitting as an appellate court to examine the legality and correctness of its own decision, which is a preserve of the appellate court. (See: *BamugayaDeo v Peter Tinkasimire&Anor, HCMA No. 90 of 2018*). - 12

Mr. Kaija for the applicant submitted that the there is an error or mistake apparent on the face of the court record in the ruling of learned trial judge because the judge

- 15 wrongly found and held that the cause of action arose in 2001 when execution took place, whereas the execution giving rise to the cause of action was done in 2003 and not 2001. The trial judge thus wrongly dismissed the suit on the sole account that it - 18 was time barred. It was contended that the execution complained of by the applicant occurred in 2003 by the Supreme Court and the suit filed by the applicant in 2014 was not time barred because it was filed within the 12 years provided for under the - 21 Limitation Act. It was submitted that this is an error apparent on the face of the court record which ought to be corrected by way of review.

In his ruling that is complained of, in Civil Suit No. 16 of 2014, at page 12, the

24 Hon. Justice Duncan Gaswaga stated thus:

*"A thorough analysis of the record reveals that both parties conceded to the fact that what is complained of in this case is the manner in which the*


| | execution of the judgment and decree to secure vacant possession of the said | |----|-----------------------------------------------------------------------------------------| | | land for Kamuje was done. That the execution went beyond the limits set | | 3 | out in the judgment and decree into the estate of Kezia. The warrant of the | | | Supreme Court<br>signed by the Registrar authorizing one Frank Gonzaga, a | | | Court bailiff to carry out execution is dated 4/6/2001. Its attached to the | | 6 | applicant's (plaintiff) supplementary affidavit sworn by Rev. Richard | | | Baguma in support of a motion filed in the Supreme Court in C/A No. 5 of | | | 2012 (Muhenda v Kamuje) as annexure B.3. A return (report) was made on | | 9 | the same warrant by the court bailiff to the Registrar on 6/8/2001 that he | | | had executed the warrant. It therefore means that the execution was done | | | between 4/6/2001 and 6/8/2001. There is ample evidence from both the | | 12 | plaintiff's and the defendant's side to prove this fact. (See also paragraph 9 | | | of Reverend Baguma's affidavit). The execution could not have been on 5th | | | day of 2003 as asserted in paragraph 5(f) (supra) of the plaint. For<br>that | | 15 | position<br>is not backed<br>by any evidence<br>on record, In fact, other beneficiaries | | | deriving title from Kamuje's estate purchased their portions of land from | | | 2001. |

*In addition, it should be noted that if the queried execution indeed went beyond the boundaries prescribed in the judgment and decree and thereby* 21 *affected the estate of Kezia by way of eviction and dispossession, then it must have been in the year 2001. This also means that if there was any land belonging to the Kezia estate that was illegally taken during the said* 24 *execution, then the cause of action if any, in the current suit should have arisen at that point in time. Therefore, time (the 12 years) started running on the 6/8/2001 when the execution was done and expired on 6/8/22013.*

**7 |** P a g e

## *Accordingly, the plaintiff's suit (plaint) signed on 9/7/2014 and filed in court on the 10/7/2014 is clearly outside the 12 years and therefore time* 3 *barred".*

From the above analysis and conclusions of the trial judge, it is clear to me that what 6 is being described by the applicant as mistake or error apparent on the face of the record are the findings of fact by the trial judge regarding when the applicant's cause of action arose. In other words the applicant by this application for review is saying 9 that the trial judge made a mistake or incorrect decision in determining or finding facts, evidence, or circumstances relevant to when the cause of action arose. For me to agree with the applicant or otherwise, that the execution giving rise to the cause 12 of action was conducted in 2003 as contended by the applicant, and not 2001 as found by the trial judge, requires me to review the pleadings and other available documents that the trial judge considered. It requires me to re-evaluate the materials 15 and come up with my own analysis. Surely this is not the function and purpose of review. The best and most appropriate recourse that the applicant was to take was to have lodged an appeal. The jurisdiction to challenge the said finding by the trial 18 judge rests in the Court of Appeal considering the evidence that the applicant

- submitted in this application. I cannot in the present application, by way of review, purport to set aside a well reasoned finding of this court. Doing so would amount to 21 me sitting as an appellate court to challenge the findings of the same court which is barred under the law. - 24 I therefore find that this is not a proper case for review. The application fails and it is hereby dismissed with costs awarded to the respondent. It is so ordered.



Vincent Wagona

3 **High Court Judge FORTPORTAL**

**DATE: 30/10/2024**