Mwanje v Mukose (Civil Revision 6 of 2024) [2024] UGCommC 316 (3 October 2024)

# **IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA COMMERCIAL DIVISION**

Reportable Civil Revision No. 0006 of 2024 (Arising from Mengo Chief Magistrates Court Civil Suit No. 0759 of 2020) In the matter between

**MWANJE STEPHEN APPLICANT**

**And**

# **MUKOSE ALEX RESPONDENT**

**Heard: 3rd October, 2024. Delivered: 3rd October, 2024.**

*Civil Procedure - Consent orders - when interpreting consent orders, the court's primary obligation is to give effect to the parties' intention at the time they entered into the consent a mutual mistake negates consent and therefore no agreement is said to have been formed at all - Court should refrain from entering consent orders which cannot be enforced - there cannot be a valid consent Order except one based on terms which have been contractually entered into and agreed upon by parties to the litigation. When that agreement is vitiated by mutual mistake, the resultant consent order too is invalidated.*

*Civil Procedure - the slip rule - the Court may rectify an order that does not accurately reflect the parties' intentions - The test for ascertaining the common intention of the parties is an objective one - the slip rule cannot be used by a party to seek clarity of a ruling but only to correct minor errors - a trial de novo - The nature of the proceeding cannot be changed but must be tried de novo upon its merits on the same process and pleadings.*

# **RULING**

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**STEPHEN MUBIRU, J.**


#### Introduction:

- [1] The applicant filed a summary suit at Mengo Chief Magistrates Court, i.e. Civil Suit No. 0759 of 2020 against the respondent seeking to recover a sum of shs. 13,500,000/= in arrears of rent. The respondent applied for and was granted leave to defend the suit, whereupon he filed his written statement of defence to the suit. Considering that his claim had risen to a sum beyond the jurisdiction of a Chief Magistrate's Court, the applicant on 27th May, 2021 withdrew the suit with costs to the respondent. The respondent then filed a bill of costs which was subsequently taxed on 13th September, 2021 and allowed at shs. 5,210,000/= By High Court Civil Appeal No. 45 of 2021 the applicant appealed that award and in judgment delivered on 19th July, 2022 the certificate of taxation was set side and taxation *de novo* was directed. The respondent filed another bill of costs which on 20th February, 2023 was taxed and allowed at shs. 6,518,800/= - [2] In the meantime, upon withdrawal of Mengo Chief Magistrates Court Civil Suit No. 0759 of 2020, the applicant filed Mukono High Court Civil Suit No. 134 of 2021 against the respondent based on exactly the same facts save for adding the additional expenses for the damage to the house. On basis of that suit, the applicant filed Mengo Chief Magistrates Court Miscellaneous Civil Application No. 0411 of 2021, seeking a stay of execution of the order of costs of the withdrawn suit. In that application, the applicant cited section 98 of *The Civil Procedure Act*, section 62 (5) of *The Advocates Act*, and Order 22 rules 26 and 89 of *The Civil Procedure Rules*. The applicant sought a stay of execution of the order of costs. pending the final disposal of Mukono High Court Civil Suit No. 134 of 2021 and High Court Civil Appeal No. 45 of 2021. - [3] When the parties appeared before the Grade One Magistrate on 29th October, 2021 Counsel for the applicant submitted that; "the respondent concedes to the application with costs in the cause." Counsel for the respondent confirmed by stating "we decided to concede to allow the issues to be discussed on appeal." The trial Grade One Magistrate then entered a consent order in the following terms;

"letter conceding to the application seen. Application is thus granted and all execution proceedings arising out of Civil Suit No. 759 of 2020 are stayed pending disposal of all matters proceeding in any court of higher jurisdiction than this one, i.e. Court of Appeal. Costs in cause."

[4] Following the decision in High Court Civil Appeal No. 45 of 2021, the respondent filed a fresh bill of costs which was taxed and allowed at shs. 6,518,800/= In response, the applicant filed Mengo Chief Magistrate's Court Miscellaneous Civil Application No. 850 of 2023 seeking to stop recovery of the costs and interpretation of the order of stay of 29th October, 2021. In a ruling delivered on 25th January, 2024 dismissing the application, the trial Magistrate held that; by the consent order she meant that "Execution of certificate of costs in the sum of UGX 5,210,000 or any other costs be stayed pending the disposal of High Court Appeal No. 45 of 2021 filed by the Applicant in the Commercial Court against the award of UGX 5,210,000 as costs" and that Mukono HCCS No. 134 of 2022 had no bearing on the execution proceedings in her Court.

#### The Application;

[5] The application by Notice of motion is made under the provisions of section 17 (1) of *The Judicature Act*, sections 33 and 98 of *The Civil Procedure Act*, Order 52 rule 1 of *The Civil Procedure Rules*. The applicant is seeking orders that; (i) ln varying or discharging without any formal proceedings the order for stay of all execution proceedings issued on 29th October, 2021 by the court in Misc. Application No. 411 of 2021 arising out of Mengo Civil Suit No. 759 of 2020, and ordering execution for costs despite the stay, the Learned Trial Magistrate acted without jurisdiction; (ii) in signing and searing a Decree/order which had no corresponding judgment on 25th February, 2022 purportedly that the same arose under Misc. Application No. 411 of 2021 the Trial Magistrate acted without jurisdiction; (iii) by allowing the Respondent to fire another Bill of costs in Mengo Civil suit No. 759 of 2020 and taxing the same yet the High court had on 19th July, 2022 directed the taxing afresh of the Bill of costs then on the court file the Trial Magistrate acted without jurisdiction; (iv) alternatively, in acting as she did in the matters outlined above even if the Magistrate had jurisdiction to do so, she exercised the same illegally or with material irregularity or injustice showing bias against the applicant; and that (v) the costs of the application be provided for.

[6] It is the applicant's case that there is no judgment nor proceedings on the Court file leading to or corresponding to the Decree/Order purportedly as the result of the proceedings of 20th October, 2021 and the Trial Magistrate endorsed and sealed the same on 25th January, 2022. The respondent filed a fresh Bill of Costs without leave of the Court, the Magistrate taxed the same without following the law and allowed the Respondent to start the process of execution. In Mengo Chief Magistrate's Court Miscellaneous Civil Application No. 850 of 2023 the trial magistrate erroneously decided that contrary to her own recorded words in the stay ordered by her on 20th October, 2022 which was for all practical purposes arrived at by consent, according to her new position, the said stay only referred to the Appeal which had since been disposed of, and did not apply to the pending Mukono High Court Circuit case. A Magistrate has no jurisdiction to vary, change or substitute any order she has recorded and pronounced in Court in the presence of both counsel without any formal application to that effect, nor does she have the jurisdiction to endorse and seal a decree or order which has no previous recorded judgment or decision from which it arises. Even if she had had the jurisdiction to do the above, she exercised the same illegally or with material irregularity or injustice, displaying outright bias against the applicant.

### The respondent's affidavit in reply;

[7] By his affidavit in reply, the respondent averred that following the withdrawal of Civil Suit No. 759 of 2020, the trial Court by an order dated 20th September, 2021 directed that the suit had been withdrawn and the respondent should pay costs. The respondent filed a bill of costs which was taxed and allowed at shs. 5,210,000/= and he consequently applied for execution. The applicant appealed to the High Court Commercial Division against the said award vide HCMA No.45 of 2021 and also applied to stay the execution of the decree before the Trial Magistrate's Court vide MA No. 411 of 2021. The order to stay execution vide MA No. 411 of 2021 arose from a conceding letter from the respondent's advocates' office intended to allow High Court Commercial Division handle the applicant's appeal vide HCMA. No. 45 of 2021 expeditiously and save Court's time. The letter read in part; "we request that we proceed with the Appeal you filed in the High Court and a number of issues raised in this application shall be discussed then." The respondent conceded to the application on basis of and specifically referred to the Appeal vide HCMA 45 of 2021 and not any other matter in any Court. On the 25th January,2022, the trial Court comprehensibly re-affirmed its judgment when it ordered and decreed that the Execution of Certificate of costs in the sum of shs. 5,210,000/= be stayed pending the disposal of High Court Appeal No. 45 of 2021 filed by the applicant in the High Court Commercial Division. The trial Court stayed execution of the order of costs pending HCMA 451 of 2021 only and not

#### The submissions of Counsel for the applicant;

[8] Counsel for the applicant submitted that a court is said to exercise jurisdiction illegally when it assumes a jurisdiction that is not vested in it by law, and is said to exercise jurisdiction with material irregularity when such court is seized with jurisdiction but does so wrongly through some procedural or evidential defect. An application for revision entails a re-examination or careful review, for correction or improvement, of a decision of a magistrate's court, after satisfying oneself of the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings of a magistrate's court. After the order of 29th October, 2021 in Miscellaneous Application No. 411 of 2021 the same Court without a formal application to either review, vary or set aside the same, could not legally entertain any application for execution brought before it before proof that Mukono HCCS No. 134 of 2022 had been disposed of. After the decision of 29th October, 2021 the trial Court became *functus officio* as far as execution in that Court was concerned and had no jurisdiction to re-open the said Order by varying, changing or substituting it.

[9] Apart from first entertaining an application to review or to set aside a decision, no judicial officer has jurisdiction to subsequently change his/her mind on something he or she has already pronounced her/himself on. by signing and endorsing a document on 25th January, 2022 and another on 25th January, 2024 the effect of which was to alter what she pronounced and signed on 29th October, 2021 in Miscellaneous Application No. 411 of 2021, she exercised that jurisdiction Illegally. She signed and sealed a document called a Decree / Order purportedly from Miscellaneous Application No. 411 of 2021 when there were no Court proceedings or judgment giving rise to it, as on 29th October, 2021 what transpired in Court and the resultant order were very different, plus the said document had not been first submitted to the applicant's lawyers for their approval. The Magistrate has no jurisdiction to allow a party to abandon the Bill the High Court has ordered to be taxed afresh.

## The submissions of Counsel for the respondent;

[10] Counsel for the respondent submitted that the application for stay of execution before the trial magistrate was conceded by the respondent to allow the applicant's appeal before High Court Commercial Division be heard expeditiously, but the applicant quickly abandoned the appeal. The appeal was specifically intended to waste court's time and he had no interest in pursuing the same. Despite the fact that the applicant was served with the Taxation Hearing Notices, Pre-Taxation and Notice to Show cause why execution should not issue, he and his lawyers refused to appear and defend both applications for which he now seeks to review and stay. The claims that the applicant will suffer irreparable loss are merely speculative and unfounded with no evidence. The applicant's actions are a waste of court's time for the applicant to use the purported application as a delay tactic to prevent the respondent from enjoying the fruits of his judgement and the applicant won't suffer substantial damage.

[11] The court should consider that a party who has obtained a lawful decree is not deprived of the fruits of that decree except for good cause and cogent reasons. The applicant has not demonstrated any proof that the respondent will not afford the decreed sum in case he is successful in future. The applicant has been served with Court process for more than 5 times and he ignored and refused to appear for any before the trial Court. The applicant was further served by a Court process server with a Notice to show cause why this very execution should not issue but again he refused to appear and defend the application. He now applies to stay the very execution he refused to appear for despite being served.

## The decision;

- [12] This court is empowered by section 83 of *The Civil Procedure Act*, to revise decisions of Magistrates' Courts where the magistrate's court appears to have; (a) exercised a jurisdiction not vested in it in law; (b) failed to exercise a jurisdiction so vested; or (c) acted in the exercise of its jurisdiction illegally or with material irregularity or injustice. It entails a re-examination or careful review, for correction or improvement, of a decision of a magistrate's court, after satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings of a magistrate's court. - [13] An application for revision can lie only on the ground of jurisdiction, and the High Court in exercise of its revisional jurisdiction is not a court of appeal on a question of law or fact. This provision applies to jurisdiction alone, the irregular exercise of or non-exercise of it or the illegal assumption of it (see *Matemba v. Yamulinga [1968] EA 643*). This Court will not interfere under this section merely because the court below came to an erroneous decision on a question of fact or of law. This Court will not in its revisional jurisdiction consider the merits of the case, however

erroneous the decision of the court below is on an issue of law or of fact, but will interfere only to see that requirements of law have been properly followed by the court whose order is the subject of revision. Where a court has jurisdiction to determine a question and it determines that question, it cannot be said that it has acted illegally or with material irregularity because it has come to an erroneous decision on a question of fact or even of law. A court is said to exercise jurisdiction illegally when it assumes a jurisdiction that is not vested in it by law, and is said to exercise jurisdiction with material irregularity when such a court is seized with jurisdiction but does so wrongly through some procedural or evidential defect.

[14] Within those confines, an application for revision entails a re-examination or careful review, for correction or improvement, of a decision of a magistrate's court, after satisfying oneself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings of a magistrate's court. It is a wide power exercisable in any proceedings in which it appears that an error material to the merits of the case or involving a miscarriage of justice occurred, except if from lapse of time or other cause, the exercise of that power would involve serious hardship to some person. This court has the power to adjudicate disputed issues of fact relating to the consent order, such as whether there was a meeting of the minds, whether the agreement was authorised, or whether grounds for rescission exist.

# i. Validity of the consent order of stay of execution dated 29th October, 2021 made in Miscellaneous Civil Application No. 411 of 2021.

[15] The applicant filed Miscellaneous Civil Application No. 411 of 2021 seeking an order of stay of execution of the costs award in the sum of shs. 5,210,000/=. The applicant cited section 98 of *The Civil Procedure Act*, section 62 (5) of *The Advocates Act* and Order 26 rules 26 and 89 of *The Civil Procedure Rules* as the enabling law. Although the law cited is capable of backing an application only for stay of execution pending a suit between the decree holder and judgment debtor (in this case Mukono High Court Civil Suit No. 134 of 2021), the application included in the body f the application, a reference to the then pending High Court Miscellaneous Appeal No. 45 of 2021 as well, without citing the enabling provisions of Order 43 of *The Civil Procedure Rules*.

- [16] The consequence of this is that while in the mind of the respondent he conceded to a stay of execution pending disposal only of High Court Miscellaneous Appeal No. 45 of 2021, in the mind of the applicant the concession also included Mukono High Court Civil Suit No. 134 of 2021. While to the respondent disposal of High Court Miscellaneous Appeal No. 45 of 2021 automatically discharged the consent order of stay of execution, to the applicant it did not, since Mukono High Court Civil Suit No. 134 of 2021 is still pending. To compound matters, the trial Magistrate in recording the consent referred to the order as being effective "pending disposal of all matters proceeding in any court of higher jurisdiction," but in the same breath indicated that what she was referring to was "i.e. Court of Appeal," yet there were no related proceedings pending before that Court. The implication is that while the parties were at cross-purposes regarding the scope of their mutual consent, the resultant Court order itself was ambiguous. - [17] A consent Order is an order of the court in terms which have been contractually entered into by parties to the litigation, validated by Court under O.50 rule 2 and Order 25 Rule 6 of *The Civil Procedure Rules* (see *Brooke Bond Liebeg (T) Ltd v. Mallya [1975] E. A 266*). Consent orders give parties to a case and, in some instances, interested nonparties, the opportunity to determine, through negotiation, the terms under which their dispute will be resolved. The parties can save the time, risk, and expense of full litigation, and their negotiated settlement nevertheless attains the status of a judicial act by virtue of the court's approval of the settlement. - [18] A consent order once recorded or endorsed by the Court, becomes the order of the Court and binding upon the parties. It is however unique in that it is not an order of the Court delivered after hearing the parties. It is an agreement or contract

between the parties. As such it can only be set aside for a reason which would enable the court to set aside or rescind on an agreement. Contracts are subject to the equitable remedy of rescission if entered under a mutual mistake. To invoke the doctrine of mutual mistake, a party must present proof that the agreement, as expressed, does not represent a "meeting of the minds" between the parties in some material respect. The mutual mistake must be substantial and exist at the time the parties enter the contract.

- [19] In the creation of a contract, it is important that there is consensus *ad idem*, which is the meeting of the minds. Under the law of contract, if both parties enter into an agreement but are equally mistaken about the contract terms, it is considered a mutual mistake. As a general rule, what makes a mutual mistake is that the mistakes contradict each other directly leading both parties to come to different conclusions. Mutual mistake occurs where the minds of both parties are at a variance; the parties are at cross purposes but neither is aware of this, i.e. both parties operate under a misunderstanding as to each other's intentions. Both parties to a contract misinterpret each other, resulting in a misunderstanding regarding the terms of the contract. Both parties have something different in mind to each other, and are often unaware of what the other is thinking. That prevents a contract from arising as there is no consensus *ad idem* (see *Raffles v. Wichelhaus (1864) 2 H & C 906; 159 ER*). The mutual mistake negates consent and therefore no agreement is said to have been formed at all. - [20] A mutual mistake creates a challenge of identifying the objectively correct position, in light of the parties' differing positions where a reasonable interpretation of the contract does align with both parties' intentions. Where there is a dispute as to what the agreement relates, an objective test will be applied: i.e. what would a reasonable person believe the contract means. In deciding whether there is indeed a mutual mistake, the court will use the objective test of what a reasonable man who witnessed the transaction would infer from the surrounding circumstances. The application of this objective test will prevent a party from pleading mistake when such a plea is inconsistent with the test. If, in light of the parties' words and conduct, there is only one possible interpretation of what was agreed, the contract will still be valid. Where multiple interpretations of the contract may exist based on the words and actions of the parties, the contract will be deemed voidable by the court. An ambiguous consent of the parties often results in an ambiguous court order.

- [21] A Court order is ambiguous if more than one meaning is reasonably consistent with the language used in the order. Ambiguity may be either patent or latent. A patent ambiguity is "glaring"; it is so obvious from the face of the order that it would place a reasonable party on notice of a discrepancy. Patent ambiguities appear from the face of the order (such as from the use of inconsistent language). A patent ambiguity in a written instrument, which requires that something be added in order to make it intelligible, cannot be explained by evidence extrinsic, and renders the instrument void. But where an expression is used that is capable of being satisfied in more ways than one, there is an ambiguity on the face of the instrument, and extrinsic evidence is admissible. - [22] A latent ambiguity, by contrast, exists where the order is reasonably, but not obviously, susceptible of more than one interpretation. Latent ambiguities exist when the language in the order appears to be clear and intelligible and suggests a single meaning, but other facts create the necessity for interpretation or a choice among two or more possible meanings. A latent ambiguity arises not on the words used but rather how those words apply to the object or to the subject they describe. It is in the nature of a latent ambiguity never to appear on the face of the writing, but to lie hidden in the person or thing, or subject whereof the writing speaks. This Court exercising its power of revision is under a duty to attempt to resolve a patent ambiguity in the order of the Court below. In the case of a latent ambiguity in a consent order, this Court's primary obligation is to give effect to the parties' intention. The Court invariably applies the objective test. i.e. what would a

reasonable person believe the order to mean. The reasonableness of an interpretation is determined by ordinary principles of order construction.

- [23] When interpreting consent orders, the court's primary obligation is to give effect to the parties' intention at the time they entered into the consent. Absent an ambiguity or internal inconsistency, interpretation of the order begins and ends with the actual words of a written agreement. The Courts examines the language of the order according to its plain and ordinary meaning. The order must be read as a whole. The Court should give effect to every word and phrase, while taking pains to avoid an interpretation that would render any part of the order surplusage or nugatory. The order should be interpreted to avoid absurd or unreasonable conditions and results. If a word or phrase is defined in the order, then that definition controls. Where a word or phrase is not defined, it is accorded its commonly understood meaning. A dictionary may be consulted to ascertain the plain and ordinary meaning of words or phrases used in the order. If the language is unambiguous, the Court must interpret and enforce the order as written. In such a case, the Court must interpret the order "as a matter of law" without considering extrinsic evidence. - [24] Ambiguity is a finding of last resort that is to be reached only after all other conventional means of interpretation have been applied and found wanting. If, and only if, the court finds the language of the order ambiguous, may it then consider extrinsic evidence to help resolve the ambiguity, which means a trial is necessary. To verify the existence of a latent ambiguity, a court must examine the extrinsic evidence presented and determine if that evidence supports an argument that the language of the order at issue, under the circumstances of its formation, is susceptible to more than one interpretation. Then, if a latent ambiguity is found to exist, a court must examine the extrinsic evidence again to ascertain the meaning of the language of the order at issue. Exercising the power of revision, tis Court will not re-write an unambiguous consent order to create an unwritten right or obligation. If the parties' intent cannot be determined after considering extrinsic evidence, the court voids the order.

- [25] In the instant case, the application sought a stay of execution pending both the appeal and the suit then pending in the High Court, but cited enabling law for only the suit. When they appeared before the trial magistrate to record their consent, the parties were actually referring to different proceedings; the applicant referring to both High Court Miscellaneous Appeal No. 45 of 2021 and Mukono High Court Civil Suit No. 134 of 2021, while the respondent referred only to High Court Miscellaneous Appeal No. 45 of 2021. They were at cross-purposes with one another, and thus did not reach agreement at all. The trial Magistrate failed to detect the mutual mistake and construed the agreement as referring only to High Court Miscellaneous Appeal No. 45 of 2021, but in the resultant order, used the expression "pending disposal of all matters" proceeding in any court of higher jurisdiction, which she categorically identified as the "Court of Appeal." - [26] It turns out in the instant case that there was both a patent and latent ambiguity, not only in the application, but also in the parties' consent and the final order of the Court. Seeking a stay pending appeal without citing the enabling law and reference to the Court of Appeal in the order are patent ambiguities. On the other hand, since there were two matters pending in the High Court, i.e. an appeal and a suit, the expression "pending disposal of all matters" is capable of referring to both the suit and the appeal, yet the respondent's consent was limited to the appeal only and the Court construed it as a reference only to the appeal. Both meanings are possible. The order at issue, under the circumstances of its formation, is therefore susceptible to more than one interpretation. - [27] It is important to note that consent orders will not be automatically approved by the Court. A judicial officer is bound to accept a consent order only as long as the proposed order is fair (procedural fairness concerns the negotiation process, i.e., whether it was open and at arms-length. Substantive fairness concerns the terms of a consent order. They are substantively fair if they are based on the principles of comparative fault and if liability is apportioned in relation to rational estimates of

the harm each party has caused), adequate, reasonable, and in accordance with the law and public policy, and may reject it if there are valid reasons for doing so (see *Wandera Stephen v. Goodman Agencies Ltd and two others, H. C. Misc. Application No. 680 of 2021*).

- [28] Such reasons may include; a material change in circumstances after an agreement is reached but before it is finalised in court; if there are errors or inaccuracies in the consent order that could have legal implications; if one party can demonstrate that they entered into the consent order under a vitiating factor; all aspects of the proceeding before Court have not been properly considered; when it provides greater relief than originally requested; where it is not consistent with the public interest or its enforcement may affect the rights of third parties or otherwise be unjust; not containing an enforceable agreement. Therefore, the approval of a consent order is generally committed to the Court's discretion. - [29] The only merit in making such an agreement an order of Court is to cut out the necessity for instituting action and to enable the obligee to proceed direct to execution. The Court may not lend its imprimatur of lawfulness to an unenforceable agreement. When, therefore, the Court is asked to make an agreement an order of Court it must look at the agreement and ask itself the question whether this the sort of agreement upon which the obligee (normally the applicant can proceed direct to execution. If it is, it may well be proper for the Court to make it an order. If it is not, the Court would be stultifying itself in doing so. It is surely an elementary principle that every Court should refrain from making orders which cannot be enforced. If the applicant asks the Court for an order which cannot be enforced, that is a very good reason for refusing to grant the prayer. - [30] A consent order though can provide greater relief than originally requested, as an order entered pursuant to a settlement agreement need not be limited to relief the court could grant on the merits. So long as the pleadings state a claim within the subject matter jurisdiction of the Court and the settlement is within the general

scope of the case made by the pleadings, the order can grant whatever relief is agreed to by the parties. This allows for flexibility in granting relief tailored to the necessities of the individual case. A negotiated settlement whose subject matter is beyond the court's jurisdiction cannot be given the effect of a binding judgment, for the parties by consent cannot confer upon the court the requisite judicial competency to enter a consent order. The court though may not modify a consent order *sua sponte*. It must approve or reject the order as it is presented. Where the Court considers the consent order to be inappropriate, it will ask for it to be altered and resubmitted.

- [31] The trial Magistrate failed in her duty when before approving the consent order, she did not satisfy herself that there was mutual agreement and that the Consent Order was lawful, and thereby acted with material irregularity or injustice in the exercise of her jurisdiction. There cannot be a valid consent Order except one based on terms which have been contractually entered into and agreed upon by parties to the litigation. When that agreement is vitiated by mutual mistake, the resultant consent order too is invalidated. - ii. Validity of the interpretive ruling of 25th January, 2024 in Miscellaneous Civil Application No. 850 of 2023 regarding the order of stay of execution dated 29th October, 2021. - [32] Once a Consent Order is approved by a court, it has the same power as any court order. In other words, it is generally final. As a general rule, once a court has rendered a final decision, it is barred from reopening, varying or retracting its decision. The doctrine of *functus officio* (that is, having performed his office) holds that once the Court renders a decision regarding the issues submitted, it lacks any power to re-examine that decision. It is trite that once a Judge pronounces a decision in a matter, he/she becomes *functus officio* and cannot nullify it by a subsequent decision in a review or in any application (see *Bedwell v. Wood (1877) 2 QBD 626*; *Kamundi v. Republic [1973] EA 540*; *Laemthong Rice Co Ltd v.*

*Principal Secretary Ministry of Finance [2002] 1 EA 119*; *East African Plans Ltd v. Roger Allan Bickford Smith [1974] HCB 97*; *Lule Esawu v. Yozamu Mugwanya [1978] 98*; *Akoko Dototia v. Sepererino Olanya [1978] HCB 115* and *Oliver Namyeka and two others v. Parliamentary Commission, C. A. Civil Appeal No. 59 of 2013*). Once a judgment or order is passed and entered or otherwise perfected according to the practice of the court, the court is *functus officio* and cannot set aside, vary or alter its order however wrong it may appear to be (see *Unnanse v. Unnanse [1950] AC 561*).

- [33] There are three exceptions of circumstances in which a court may revisit its orders: (1) to correct errors in drafting, (2) to correct errors in manifesting the express intention of the court, the idea being to make the meaning clear, or (3) where allowed by statute on such matters as the court is given specific legislative authority to act. A slip rule amendment can be made at any stage to enable the court to properly reflect what was intended and to enable a fair resolution of proceedings, consistent with the interests of justice (see *Mellor v. Swire (1985) 30 Ch D 239* and *IC v. RC [2020] All ER (D) 74*). Rectification is a remedy by which the court may amend the terms of an order which does not accurately reflect its intention. - [34] With regard to a consent order, the Court may as well rectify an order that does not accurately reflect the parties' intentions. This arises where due to a mistake in drafting the order, it does not reflect the common intention of the parties. The test for ascertaining the common intention of the parties is an objective one. The court must consider what a reasonable observer with knowledge of the background facts and the parties' prior communications would have thought their common intention at the time of the agreement to be. The Court may not use its power of rectification to substitute its decision with one more favourable to a moving party. The slip rule cannot be used by a party to seek clarity of a ruling but only to correct minor errors. The slip rule can be applied only where the proposed amendment is one about which no real difference of opinion can exist. If the omission sought to be corrected

goes to the merits of the case, or seeks to clear an ambiguity in the decision, it is beyond the scope of the slip rule, for which the proper remedy for the aggrieved party is to file appeal or an application review.

[35] Clearly the errors in the order of 29th October, 2021 went beyond mere clerical mistakes arising from an accidental slip or omission, but rather, were ambiguities. They are concerned not so much with the manifest intention of the court, as with that of the parties. In her interpretive ruling of 25th January, 2024 the trial magistrate erred when she did not concern herself with ascertaining the intention of the parties, but instead sought to clarify what she meant when she made the order of 29th October, 2021 by correcting what she perceived to be an error in expressing the manifest intention of the court. The effect of the resultant ruling was not to correct, but rather amounted to a review her earlier decision, which is not permissible under the slip rule. The trial magistrate therefore acted with material irregularity or injustice in the exercise of her jurisdiction to clarify what she perceived to be an accidental slip or omission in the order of 29th October, 2021.

## iii. Validity of the *de novo* taxation proceedings.

- [36] In a decision delivered High Court Civil Appeal No. 45 of 2021 on 19th July, 2002 the certificate of taxation resulting in the award of shs. 5,210,000/= was set side and taxation *de novo* was directed. The respondent proceeded to file another bill of costs which on 20th February, 2023 was taxed and allowed at shs. 6,518,800/= - [37] A trial *de novo* is based on the same pleadings that were filed originally. A trial *de novo* is means a "fresh trial" or "new trial". It occurs where certain pre-conditions necessitate that the hearing in a matter is re-litigated. Its effect is to nullify the purported proceedings and trial as if it never was conducted at all. The proceeding is re-tried or tried anew as if no trial whatsoever had been held in the first instance. It should not be taken as an opportunity to fill in gaps noted during the hearing by bringing a new set of pleadings or evidence for the repeat trial. The nature of the

proceeding cannot be changed but must be tried *de novo* upon its merits on the same process and pleadings; that is, the process and pleadings must be of the same nature as those set side. In the case of taxation, it means that the entire process of taxation is undertaken afresh as if none had been undertaken before, based on the same bill of costs, not a fresh one. The trial magistrate therefore acted with material irregularity or injustice in the exercise of her jurisdiction when she undertook *de novo* taxation on basis of the respondent's bill of costs filed on 20th February, 2023 instead of the one filed on 11th March, 2021.

- [38] In the final result and on account of all the reasons explained above, the application is allowed with the following orders; - a) The orders of the Court below dated on 29th October, 2021 given in Mengo Chief Magistrates Court Miscellaneous Civil Application No. 0411 of 2021 and the interpretive one dated 25th January, 2024 given in Mengo Chief Magistrate's Court Miscellaneous Civil Application No. 850 of 2023 are both hereby set aside. - b) The certificate of taxation in the sum of shs. 6,518,800/= issued on 18th April, 2023 on basis of the bill of costs filed on 20th February, 2023 is hereby set aside. - c) The trial Magistrate should hear Mengo Chief Magistrates Court Miscellaneous Civil Application No. 0411 of 2021 on its merits. - d) The trial Magistrate should tax *de novo*, the respondent's bill of costs filed on 11th March, 2021 in accordance with the order of this Court made on 19th July, 2022 in High Court Civil Appeal No. 45 of 2021. - e) The costs of this application are to abide the outcome of Mengo Chief Magistrates Court Miscellaneous Civil Application No. 0411 of 2021.

Delivered electronically this 3rd day of October, 2024 …Stephen Mubiru…….. Stephen Mubiru Judge, 3rd October, 2024

Appearances;

For the applicant : M/s The Law Associates Advocates. For the respondent : M/s Newmark Advocates.