Namirembe Madalena v Tayebwa Bernard Kakongi (Revision Cause No. 028 of 2023) [2025] UGHCLD 58 (7 May 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA LAND DIVISION REVISION CAUSE NO. 028 OF 2023 NAMIREMBE MADALENA :::::::::::::::::::::::::::::::::::: APPLICANT VERSUS TAYEBWA BERNARD KAKONGI :::::::::::::::::::::::::: RESPONDENT**

## **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.**

### *Introduction;*

- 1. The applicant brought this application by way of notice of motion under sections 83 and 98 of the civil procedure act and order 52 rules 1 and 3 of the civil procedure rules for orders that; - i) An order for revision doth issue against the judgment and orders of the trail court vide Chief Magistrate of Entebbe at Entebbe Civil Suit No. 218 of 2012 delivered on the 16th of September 2014. - ii) The costs of the application be provided for.

*Applicant's evidence;*

- 2. The application is supported by an affidavit deponed by the applicant which briefly states as follows; - i) That I am the owner of the Kibanja interest comprised in Kikusa-Muwanyi in Wakiso district having been in possession of the same since 1973. - ii) That around 2011, the respondent trespassed on my Kibanja and I filed a complaint against him at Ssisa sub county LCIII court vide Civil Suit No. 59 of 2011 for trespass. - iii) That the LCIII court proceeded with the hearing of the dispute and resolved that I should continue using the suit Kibanja. - iv) That surprisingly around April 2023, I started receiving threats from the respondent demanding me to vacate the suit kibanja claiming that he was issued a judgement in his favor by the magistrate court of Entebbe at Entebbe. - v) That upon my lawyers carrying out necessary due diligence, they discovered that the judgement at Entebbe was issued by HW Julaina Kimono against me.

- vi) That the trial Magistrate exercised jurisdiction not vested in her in handling a dispute of trespass. - vii) That the trial magistrate in proceeding with the said suit was at all times aware that the said suit was proceeding before the LCIII court.

### *Representation;*

3. The applicant was represented by M/S Katende Serunjogi & Co. Advocates whereas there was no representation from the respondent despite being served with the application. Only the applicant filed written submissions.

#### *Issues for determination;*

- i) Whether the trial magistrate exercised jurisdiction not vested in her by law. - ii) Whether the magistrate court acted with material irregularity when it continued with the hearing of Civil Suit No 218 of 2012 despite being put on notice that there were already proceedings in the sub county local council court in respect to the same subject matter? - iii) What remedies are available for the parties?

#### *Resolution and determination;*

#### *Issue 1;*

- 4. Counsel for the applicant submitted that Section 83 of the civil procedure act empowers the high court to call for the record of any cases which has been determined by any magistrate's court if that court appears to have (a) exercised a jurisdiction not vested in it by 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 and make such order in the records as the court may consider fit. - 5. Counsel further relied on the provisions of section 207(1)b of the magistrate courts act and the decision in K**awaga Lawrence & 2 ors vs Ziwa and sons property consultants ltd Civil Revision No. 04 of 2018** which are to the effect that actions of trespass without considering the value of the subject matter are subject to the jurisdiction of a chief magistrate not a magistrate grade one. - 6. After perusal of the affidavit in support of this application and the submissions of counsel for the applicant, emphasis is being made

to the fact that the respondent did not file an affidavit in reply therefore the application and affidavit of the applicant in the case stands uncontested. *(See: Samwiri Massa Vs Rose Achen, 1978*

#### *HCB 297)*

- 7. *Black's Law Dictionary (9th Edition)* defines revision as a reexamination or careful review for correction or improvement or an altered version of work. - 8. Section 83 of the Civil Procedure Act, is to the effect that this court *The high court may call for the record of any case which has been determined under this act by any Magistrates Court, and if that court appears to have* exercised the jurisdiction not vested in it in law; failed to exercise the jurisdiction so vested; or *acted in exercise of its jurisdiction illegally or with material irregularity or injustice, the High Court may revise the case and make such order in it as it thinks fit"* - 9. From the wording of section 83 of the Civil Procedure Act, it is apparent that revision applies to jurisdiction alone, the irregular exercise or non-exercise of it, or illegal assumption of it. The section is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved.

*10.* 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 law, which error would then qualify to be rectified on appeal*. (See: Matemba vs*

#### *Yamulinga (1968) Vol.1 EA 643)*

- *11.* The duty of the court in that regard would be to revise the case and make such order as it deems fit. Therefore, the subject of reexamination by the High Court sitting in its revision jurisdiction would be the lower court record for purposes of ascertaining whether or not such court did perpetuate the misnomers spelt out in sub-sections (a), (b) and (c) of section 83 of the Civil Procedure Act. This court revises the record of the lower court to satisfy itself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings. - *12.* In the instant case, the applicant alleges that the trial magistrate grade one in entertaining Civil Suit No. 218 of 2012 acted in its jurisdiction illegally or with material irregularity or injustice because the cause of action in the said suit was one of trespass.

- *13.* The perusal of the plaint in Civil Suit No.218 of 2012 under paragraph 3 reads as follows, **"the plaintiff's claim against the defendant is for trespass…"** and the said suit was determined by Her Worship Juliana Kimono Magistrate Grade one on the 16th of September 2014. - *14.* Further court **in Kawaga Lawrence and Anor vs Ziwa and sons(supra)** clearly stated that actions for trespass without considering the value of the subject matter are confined to chief magistrates only. - *15.* In the instant case, it appears that the learned trial magistrate was proceeding as if she was the chief magistrate in an action which she did not have jurisdiction to preside over which was very erroneous. - *16.* A clear distinction has to be laid between jurisdiction of a magistrate grade 1 and a chief magistrate. A magistrate grade one is guided by both pecuniary jurisdictions which is Ughs 20,000,000 and territorial jurisdiction as guided by the magisterial instruments. - *17.* I am of the view that the magistrate grade one in the instant case presided over a matter that was not within her jurisdiction

something that was erroneous. It's settled that judgements and orders of a court without jurisdiction however precisely certain they are, they are a nullity and only fit to be set aside. *(See; Byekwaso pafula and ors vs Cecilia Lwanga, CA No. 027 of 2023)*

- *18.* It is thus the finding of this court that the decision of the trial magistrate grade one occasioned a miscarriage of justice to the parties. The foregoing establishes sufficient ground for this court to revise the orders issued as per section 83 of the Civil Procedure Act. - *19.* Therefore, the instant application succeeds with the following orders; - i) The orders of the magistrate grade 1 issued on the 16th of September 2014 vide Civil Suit No. 218 of 2012 are hereby set aside by this court. - ii) The deputy registrar shall send back the file to the trial court for appropriate action. - iii) No orders as to costs.

**I SO ORDER.**

#### **NALUZZE AISHA BATALA**

#### **Ag. JUDGE**

**07TH /05/2025**

**Delivered Electronically via ECCMIS on the 7 th day of May 2025**