Nakate and 16 Others v Kabengwa Kizito Kimbugwe (Review Cause 10 of 2022) [2023] UGHCLD 458 (17 October 2023)

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

**(LAND DIVISION)**

#### **(REVISION CAUSE HCT-00-CR-0010-2022)**

- 5 **(Arising from Civil Suit No.0012-2021 The Chief Magistrates Court of Wakiso At Kakiri)** - **1. NAKATE NIGHT** - **2. KOMUHENDO AISHA** - **3. KIGGUNDU ANNET** - **4. KASULE ANNET** - 10 **5. SETUBA ISMA** - **6. ABUBAKER KAWENJA** - **7. SSALONGO MUKISA JAMES** - **8. CHARLES SENGENDO** - **9. JACKIE BULUNGIBWE** - 15 **10. KALEGI JABERI** - **11. KABANDA RASHID** - **12. KIVUMBI MOHAMMED** - **13. GODFREY MULONDO** - **14. FARIDAH NAKIBUUKA** - 20 **15. JUSTINE NAKALEMA** - **16. ASIINA NABUKEERA** - **17. JOVIA KYOHAMGIRE------------------------------------------------------------APPLICANTS**

**V**

**KABENGWA KIZITO KIMBUGWE-------------------------------------------------RESPONDENT**

#### **Before: Hon. Lady Justice Olive Kazaarwe Mukwaya**

## **RULING**

This application is brought for revision. It is supported by one affidavit sworn by the 8th Applicant, Mr. Sengendo Charles. This court called for the lower court record in Civil Suit

5 No. 12 of 2021 of the Chief Magistrates Court of Wakiso at Kakiri.

The record indicates that when the matter was coming up for judgment, Counsel for the Defendants raised a preliminary objection that the court had no pecuniary jurisdiction to determine the matter. The court, in its ruling dated 11th March 2022, overruled the objection and went on to deliver its judgment in the suit on the same date, 11th March 10 2022.

After filing their pleadings, the parties' Counsel were given an opportunity to file written submissions, hence this ruling.

#### **Issue**

## **Whether sufficient grounds exist for the revision of the ruling, judgment, orders**

# 15 **and decree in Civil Suit No. 12 of 2021 of the Chief Magistrates Court of Wakiso at Kakiri?**

## **Section 83 of the Civil Procedure Act** provides;

*83. Revision*

*The High Court may call for the record of any case which has been determined under this* 20 *Act by any magistrate's court, and if that 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,*

*the High Court may revise the case and may make such order in it as it thinks fit; but no*

25 *such power of revision shall be exercised—*

*(d) unless the parties shall first be given the opportunity of being heard; or*

*(e) where, from lapse of time or other cause, the exercise of that power would involve serious hardship to any person.*

In his affidavit, the 8th Applicant drew this Court's attention to the Plaintiff's claim in the lower court which was land comprised in Busiro Block 222 Plots 25 and 111 measuring 5

acres. The 8th 5 Applicant was informed by his lawyers that the Magistrate Grade 1 had no pecuniary jurisdiction to handle the matter whose subject matter exceeded UGX 20,000,000/=. And therefore the judgment, decree and orders of the court were entered in error. According to the 8 th Applicant, the suit land is valued at UGX 120,000,000/=.

Counsel for the Respondent challenged this affidavit since it lacked proof that it was sworn 10 in a representative capacity under **Order 1 rule 12 of the Civil Procedure Rules** which

*12. Appearance of one of several plaintiffs or defendants for others.*

provides;

*(1) Where there are more plaintiffs than one, any one or more of them may be authorised by any other of them to appear, plead or act for that other in any proceeding,* 15 *and in like manner, where there are more defendants than one, any one or more of them may be authorised by any other of them to appear, plead or act for that other in any proceeding.*

*(2) The authority shall be in writing signed by the party giving it and shall be filed in the case.*

- 20 I find, however, that this order and rule is in respect of parties to suits. And **section 83 of the Civil Procedure Act** envisages that only an aggrieved party may make an application for revision. There is no hindrance in law preventing the 8th Applicant from moving court in his own right without his co-defendants. My perusal of paragraph 8 of his written statement of defence, filed on the 6th October 2020, indicates that he intended from the - 25 onset to raise the preliminary objection that the court has no pecuniary jurisdiction to hear the matter.

The learned trial Magistrate Grade I overruled the objection on the court's jurisdiction on grounds that the claim was for trespass and therefore he had jurisdiction to hear the

matter. Trespass was only one of the prayers. Another prayer was for eviction of the defendants who each claimed to have a proprietary interest in the land as bona fide occupants. This prayer gave rise to the issue of whether the defendants were bona fide occupants, an issue that called into question the proprietary interests of the parties in the

5 suit land whose value was beyond UGX 20,000.000/=. In my view, the prayer for eviction and the resultant question around the defendants' proprietary interests placed the matter outside the jurisdiction of the court. The learned trial Magistrate Grade I, in hearing and determining the matter exercised a jurisdiction he did not possess.

**In conclusion, I find merit in this application. It is allowed and I order as follows;**

- 10 **1. The ruling, judgment, orders and decree in Civil Suit No. 12 of 2021 of the Chief Magistrates Court of Wakiso at Kakiri are hereby revised and set aside for want of jurisdiction.** - **2. Each party to bear its own costs.**

15 **-----------------------**

**Olive Kazaarwe Mukwaya**

**JUDGE**

**17th October 2023**

**Delivered by email to Counsel for the 8th Applicant and the Respondent.**

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