Nakazi v Kizito (Miscellaneous Application 1328 of 2023) [2024] UGHCFD 51 (27 August 2024)

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

## **IN THE HIGH COURT OF UGANDA AT KAMPALA [FAMILY DIVISION]**

# **MISCELLANEOUS APPLICATION NO. 1328 OF 2023 (ARISING OUT OF MISCELLANEOUS APPLICATION NO. 47 OF 2023) (ARISING OUT OF CIVIL SUIT NO. 279 OF 2022)**

**NAKAZI MARGARET ::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT** (ADMINISTRATRIX OF THE ESTATE OF THE LATE MWOGERA EDWARD)

#### **VERSUS**

**KIZITO SAMUEL ::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

#### **RULING BEFORE: HON. LADY JUSTICE CELIA NAGAWA**

#### **1.0 Introduction.**

- 1.1 This Ruling relates to an Application brought by the Applicant under **Sections 82 and 98 of the Civil Procedure Act, Cap. 282, Order 46 Rule 1 (a), 2, 4, 8 of the Civil Procedure Rules S. I 71-1** seeking for orders that; - i) The decision of the learned Trial Judge in Miscellaneous Application No. 47 of 2023 be reviewed and set aside. - ii) Miscellaneous Application No. 47 of 2023 be dismissed with costs. - iii) Costs of the Application be provided for.


- 1.2 The grounds of the Application are summarized in the Notice of Motion and also set out in the supporting affidavit of **Nakazi Margaret**, the Applicant, which briefly are that; - 1. The Applicant was the Respondent in Miscellaneous Application No. 47 of 2023 filed to appoint an interim administrator. - 2. The Applicant retained M/s. Mukuve and Company Advocates to prosecute the Application but when it came up for hearing the said advocate did not file submissions on time as requested by the court but filed the same after the matter had been decided. - 3. Accordingly, the court decided against the Applicant in the matter and gave orders which have far reaching consequences. - 4. That the mistake of counsel in not filing the Applicant's submissions on time heavily prejudiced the Applicant in the matter and the Applicant thus brings the application for review so that the mistake of counsel is not visited upon the Applicant. - 1.3 In reply, the Respondent, Kizito Samuel filed an Affidavit in Reply opposing the Application in which he briefly stated that; - a) On the day Miscellaneous Application No. 47 of 2023 came up for hearing, counsel for Applicant was at the court premises but negligently and intentionally chose not to attend court for trial. These comic moves were deliberately calculated to secure minor reasons for dragging the trial of the suit by securing appeals and reviews.


- b) Submissions are secondary pleadings and cannot be a substitute for primary evidence by affidavit which has been presented to court. The Applicant had already filed her evidence by way of an affidavit in reply dated 1st August, 2023 and also a reply to the supplementary affidavit dated 1st August, 2023 that court purely considered and it reached its just decision. - c) There were sufficient grounds for appointing the Respondent as an interim administrator to take over the administration and preserve the estate of the Late Mwogera Edward. - d) The order for the dismissal of Miscellaneous Application No. 47 of 2023 sought by the Applicant is moot, theoretical, impractical and untenable since court already decided the Application on its merit and disposed of it. - e) High Court Civil Suit No. 279 of 2022 should be urgently fixed for hearing. - 1.3 The Applicant filed an Affidavit in Rejoinder on 2nd July, 2024 which has been considered by this Honorable Court in the determination of this Application. - 1.4 The Applicant filed written submissions on 27th October, 2023. The Respondent filed written submissions in reply on 28th April, 2024. The Applicant filed written submissions in rejoinder on 2nd July, 2024. - 1.5 I have carefully perused, evaluated and considered all pleadings together with the written submissions of both Counsel in determination of this Application.


#### **2.0 Hearing and Representation.**

2.1 The Applicant was represented by M/s. Mukuvu Mugagga Karemire of Mukuve & Co. Advocates and the Respondent was represented by Mubiru Shafique Musa of M/s. Nabakiibi, Kanyago & Co. Advocates.

## **3.0 Issue for Court's Determination. Whether or not the Application meets the criteria for review?**

### **4.0 Determination of this Application.**

4.1 The Jurisdiction of Court to review its Orders/Judgements is provided for under **Section 82 of the Civil Procedure Act, Cap.282** which 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 judgment 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."*

- 4.2 **Order 46 Rule 1 of the Civil Procedure Rules S. I 71-1** further provides that; - *"(i) 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."* - 4.3 As per the provisions of **Order 46 Rule 1 (b) of the Civil Procedure Rules,** applications for review can be filed by any person considering himself/herself aggrieved by a decree or order under the following circumstances which include: - - (a) Discovery of new and important matters of evidence previously unknown or could not be produced at the time when the decree was passed or order made; - (b) Some mistake or error apparent on the face of record. - (c) For any other sufficient reason, but the expression "sufficient" should be read as meaning sufficiently of a kind analogous to (a) and (b) above. See the case of **Re Nakivubo Chemists (U) Ltd (1979) HCB 12 and FX Mubuuke Versus UEB High Court Misc. Application No.98 of 2005.**


#### **5.0 Court's determination.**

- 5.1 The Applicant in his written submissions is relying on the following grounds for review; - i. That mistake of Counsel to file written submissions on time in Miscellaneous Application No.47 of 2023 should not be visited upon the Applicant. - ii. That Miscellaneous Application No.47 of 2023 was not properly before the Court and raised a multiplicity of suits. This is because the application was brought on the premise that the Applicant was injuncted by the Court from performing her duties as an administrator vide Misc. Application No. 827 of 2022 which was misleading because the temporary injunction granted against the administrator was illegal and there is an appeal pending against it vide Misc. Application No. 1095 of 2023. - iii. That the prayer seeking to add the Applicant in Misc. Application No. 47 of 2023 as a party to the land dispute known as KBG/DLT/70/05 is wholly in vain and redundant. - iv. That the Application was premised on allegations against the administrator in respect to administering the estate, all of which, are not proven and without factual basis. - 5.2 The Respondent on the other hand, contends that it is not clear under which of the three grounds for review set out under **Order 46 Rule 1 of the Civil Procedure Rule, S. I. 71-1** the Applicant brought the Application.


- 5.3 In rejoinder, the Applicant associates himself with the case law as laid out by the Respondent regarding the grounds for review but disagrees with the Respondent with regard to combining the grounds for review under **Section 82 of the Civil Procedure Act** *(Supra)* with the grounds for review **under Order 46 Rule 1 of the Civil Procedure Rules S. I 71-1**. The Applicant contends that under **Section 82 of the Civil Procedure Act**, the court has wide powers to review its Orders and is not restricted while under Order 46 Rule 1 of the Civil Procedure Rules, the court's powers are restricted to the three grounds enlisted therein. The Applicant further contends that under Section 82 of the Civil Procedure Act, the court only needs sufficient reason or to be convinced that reviewing the Order is necessary for the ends of justice to be met. - 5.4 This court finds that **Section 82 of the Civil Procedure Act** is a general provision that empowers the court to correct any injustices or errors. **Order 46 Rule 1 of the Civil Procedure Rules**, however, narrows down the scope of review by setting out specific grounds under which a review can be granted to wit; discovery of new and important evidence, a mistake or error apparent on the face of the record, or any other sufficient reason. - 5.5 The grounds listed under **Order 46 Rule 1** *(supra)* are intended to provide clear, defined criteria for review, thereby limiting the scope of the court's review to more specific circumstances. - 5.6 While **Section 82** provides a broader mandate, the application of **Order 46 Rule 1** is more precise and constrains the court's review


power to well-defined grounds. It is important to recognize that the specific rules under **Order 46 Rule 1** are intended to give effect to the broad power conferred by **Section 82**, by delineating the particular circumstances under which a review may be sought.

- 5.7 In practice, therefore, when an Application for review is filed, it must satisfy the criteria set out in **Order 46 Rule 1**, even though **Section 82** provides a broader basis for review. This ensures that the grounds for review are clear and justifiable, aligning with the principles of fairness and due process. - 5.8 In this case, the Applicant argues that **Section 82** provides the court with wide powers for review, and thus, the Application should be considered on a broader basis than what is outlined in **Order 46 Rule 1**. However, it is crucial to apply the specific criteria set forth in **Order 46 Rule 1** to ensure that the review is based on established grounds such as new evidence, errors apparent on the face of the record, or other sufficient reasons. - **5.9** This court therefore finds that the Applicant's reliance on the broad interpretation of **Section 82** *(supra)* does not suffice. The Application must meet the criteria of **Order 46 Rule 1**, which requires a clear demonstration of grounds such as new evidence or errors apparent on the record and other sufficient reason which must be of a kind analogous to the said grounds. The Applicant's claims including the alleged delay by Counsel in filing submissions for Miscellaneous Application No. 47 of 2023, the argument that the Application was improperly before the Court and involved multiple suits, the irrelevance of adding the


Applicant as a party to the land dispute KBG/DLT/70/05, and the unproven allegations regarding the administration of the estate do not meet these specific criteria. Therefore, the Application fails.

- **5.10** The Applicant filed Miscellaneous Application No. 1356 of 2023 seeking orders that, execution of the ruling passed by the court in Miscellaneous Application No. 47 of 2023 be stayed pending hearing of the application for review filed by the Applicant before this Honorable Court. - 5.11 I hereby find that Miscellaneous Application No. 1356 of 2023 for stay of execution pending the hearing of this instant application automatically fails.

#### **6.0 Conclusion.**

Accordingly, Miscellaneous Application No. 1328 of 2023 together with Miscellaneous Application No. 1356 of 2023 are therefore dismissed with costs to the Respondent.

### **Dated, signed and delivered electronically this 27th day of August, 2024.**