Rwabutaraka v Wakami (Civil Review 14 of 2025) [2025] UGHC 72 (27 February 2025)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CR-0014-2024

(Arising from HCT-05-CV-CA-0036-2017) (All arising from MBR-00-CV-CS-0043-2008)

MIRIAM RWABUTARAKA :::::::::::::::::::::::::::::::::: **VERSUS**

ANANIA WAKAMI !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

# **BEFORE:** Hon Lady Justice Joyce Kavuma **RULING**

#### Background

This was an application for review brought under Sections 82 and $\mathbf{11}$ 98 of the Civil Procedure Act and Order 46 Rules 1 & 8 of the Civil Procedure Rules.

The gravamen of the application as can be deduced from the $[2]$ motion and supporting affidavit was that while this court was entertaining HCT-05-CV-CA-0036-2017, the Applicant was not given an opportunity to tender in material evidence that was disregarded by the trial court but was only notified of a judgment in the matter. The crux of the Respondent's opposition to the instant application $[3]$ was that the instant application was a non-starter calculated to waste this court's time as the reasons brought out in the instant application are the same that were brought in evidence and disbelieved by this court and the lower court.

$\mathbb{R}$

### Representation.

The Applicant was represented by Mr. Jabal Ruhimba while Mr. **[4]** Patrick Yehangane represented the Respondent. Both counsel addressed this court by way of written submissions which I have considered.

#### The issues for resolution:

In their written submissions to this court, counsel for the Applicant **[5]** framed one issue for resolution by this court which this court also adopt as:

# Whether the instant application discloses sufficient grounds for review.

On the instant issue, it was submitted by counsel on behalf of the **[6]** Applicant that there was both an error apparent on the face of the record of HCT-05-CV-CA-0036-2017 and sufficient reason owing to a mishap or uncommunicated transfer of the case file to the Hon. The Principal Judge to write a judgment which hindered the Applicant from filing her written submissions thereby resulting into judgment in the same without the parties' written submissions.

In response, it was submitted on behalf of the Respondent that $[7]$ the instant application does not disclose any error apparent on the face of the record nor was it based on discovery of any new and important matter of evidence which after the exercise of due diligence was not within the knowledge of the Applicant or could not be produced by the Applicant at the time when the order was made. It was further submitted that the Applicant has not presented any other sufficient cause analogous to the aforementioned grounds.

That the Applicant was given a schedule to file written submissions by 14<sup>th</sup> October 2019 but the date passed without her filing submissions but

simply alleged that she was only notified of the judgment in the said matter. That the Applicant's grounds in the instant application would sound only in appeal and not review and that she chose to go by review instead of appeal probably because the time for lodging an appeal had long passed.

### Resolution.

[8] The jurisdiction to review consent decrees is derived from Section 82 of the Civil Procedure Act and Order 46 Rule 1 of the Civil Procedure Rules. (See Attorney General and Anor vs Mark Kamoga and Anor (Supreme Court Civil Appeal no. 8 of 2004)).

**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 this Act but from which no appeal has been preferred; or by a decree or order from which no appeal is $(b)$ allowed...may apply for a review of the judgment to the court which passed the decree or made the order...." (Emphasis is added)

**Order 46 Rule 1** of the Civil Procedure Rules in so far as it applies to the instant application provides that:

### "1. Application for review of judgment.

(1) 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..."[Emphasis Added]*

From the above provisions of the law, it follows that for an applicant to succeed on an application for review, they ought to prove to court any of the following grounds; first, that there is discovery of a new and important matter of evidence previously overlooked by excusable misfortune. (See Re Nakivubo Chemists (U) Ltd [1979] HCB 12) Secondly, that there was a discovery of some error or mistake apparent on the face of the record. (See Independent Medico Legal Unit vs The Attorney General of The Republic of Kenya (Application no. 2 of 2012) **(EACJ).** Thirdly and lastly, that there exists any other sufficient reason of a kind analogous to the first two aforementioned grounds. (See Yusuf vs Nokorach [1971] EA 104).

**[9]** I must point out from the onset that the submissions of counsel for the Applicant as well as the supporting affidavit were at variance with the grounds relied upon by the Applicant in her motion. The said submissions were submissions from the bar.

Whereas the main ground of the instant application as can be deduced from **paragraph 2(g)** of the Notice of motion related Applicant not being given an opportunity to tender in material evidence that was disregarded by the trial court, the submissions and supporting affidavit

are hinged on an error apparent on the face of record in this court's failure to give the Applicant an opportunity to file her submissions before making a judgment in HCT-05-CV-CA-0036-2017.

[10] The above notwithstanding, I will in the interests of justice consider the application on its merits closing relying on the suggested grounds of error on the face of the record and sufficient cause.

In the case of Independent Medico Legal Unit vs The Attorney General of The Republic of Kenya (Application no. 2 of 2012) (EACJ), the East African Court of Justice took time to restate the law on what an "*apparent error on the face of the record*" means. Their Lordships held that:

"First and foremost, the term "error apparent on the face of the record" is not/hardly a term of art: one whose meaning has been definitively settled, once and for all. Rather, it is a nebulous legal concept the fluidity of whose content must be interrogated in every case – using the rich jurisprudence that has grown up $\mathbf{F}$ around it. Second, implicit in that term, is the notion that review of a judgment has a limited purpose. It must not be allowed to be an appeal in disguise. The purpose of review is not to provide a back door method by which unsuccessful litigants can seek to re-argue their cause. On these two principles hang all the law of "apparent error".

The court went further and laid down the following principles which I shall produce;

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- (a) The court in determining the expression "error apparent on the record" should do so sparingly and with great caution. - (b) The error apparent must be self-evident; not one that has to be detected by a process of reasoning. - (c) No error can be said to be apparent where one has to travel beyond the record to see the correctness of the judgment. - (d)It must be an error which strikes one on mere looking at the record, and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. - (e) A clear case of "error apparent on the face of the record" is made out where, without elaborate argument, one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it.

Drawing from the words of their Lordships in Independent Medico **(supra)**, from the foregoing, the error complained of by an Applicant must be manifest and self-evident not requiring an elaborate discussion of evidence or argument to establish. (See also Edison Kanyabwera vs Pastori Tumwebaze SCCA no. 6 of 2004).

**[11]** The error that the Applicant in the instant matter calls on this court to interrogate as has already been indicated lay in the fact the claim that the Applicant was denied a chance to file her written submissions in HCT-05-CV-CA-0036-2017 owing to the fact that the case file was transmitted to the trial Judge in Kampala to write his judgment after he had been promoted to Principal Judge.

[12] The record of HCT-05-CV-CA-0036-2017 indicates that the hearing of the matter commenced on 12th September 2019 in the presence of counsel for the Appellant and counsel for the Respondent. Both the Appellant and Respondent were in court. I shall reproduce, verbatim, portions of the record relevant to the instant application;

"Counsel: The appeal is for hearing.

We are freshly instructed. The record as it is, we feel we need to assemble it in a bundle and file it afresh and serve it upon the respondent. We pray for a month from today to do so. We can then file written submissions which we can serve to the respondents.

$\bigstar$ *Counsel for the Respondents: we have no objection.* Court: Let the parties file written submissions. Counsel to file the bundle together with written submissions by 14<sup>th</sup> of October. The Respondent to file by 14<sup>th</sup> of November. Rejoinder one week.

Judgment on 9<sup>th</sup> of January 2020."

It is clear from the above excerpt that counsel for the Applicant prayed to this court to be allowed to file submissions in the matter on $12<sup>th</sup>$ September 2019 and this court allowed his prayer and went ahead and gave the parties timelines within which when the parties ought to file their submissions.

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[13] I have critically examined the record of HCT-05-CV-CA-0036-2017, contrary to the court's directives, no submissions were filed before the date that had been fixed by the court. As a matter of fact, no submissions were ever filed prior to the date of judgment.

As part of the same record is a letter dated 11<sup>th</sup> September 2020 by the learned Deputy Registrar of this court addressed to the learned trial Judge forwarding HCT-05-CV-CA-0036-2017 to him for purposes of writing his judgment.

This was close to 9 months and 3 weeks after the date when the court's timelines within which submissions ought to have been filed elapsed.

[14] The discretion is with the court on how to proceed where a party has not made submissions as and when ordered to do so.

Order 17 rule 4 of the Civil Procedure Rules gives guidance in this regard. It provides that;

"Where any party to a suit to whom time has been granted fails to produce his or her evidence, or to cause the attendance of his or her witnesses, or to perform any other necessary act to the further progress of the suit, for which time has been allowed, the court may, notwithstanding the default, proceed to decide the suit immediately."

Having found no submissions from counsel, the learned trial Judge had the discretion to proceed and determine HCT-05-CV-CA-0036-2017 immediately in line with **Order 17 rule 4** of the Civil Procedure Rules.

In effect, I do not find any error or mistake apparent on the record of HCT-05-CV-CA-0036-2017 warranting a review thereof.

W

This application for review is hereby dismissed.

The Applicant shall bear the costs of the application.

I so order.

Dated, delivered and signed at Mbarara this. A. T. day of ...................................

Joyce Kavuma Judge