Wakilii

Jordan Ssebuliba Kiwanuka v Mohan Musisi Kiwanuka (Consolidated Civil Application No. 400 of 2021 & 1010 of 2023)

Court of Appeal · [2025] UGCA 170 · 2025 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal to the Court of Appeal from a High Court ruling made in the exercise of original jurisdiction, consolidated with two interlocutory applications — one to strike out the notice of appeal and one for leave to adduce additional evidence on appeal.
Decision
Appeal allowed; High Court ruling set aside; the respondent declared to have suffered dementia/Alzheimer's since May 2017 with orders made for family access and estate management. Application to strike out the appeal dismissed; application for leave to adduce additional evidence granted.

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Holding

The Court dismissed the respondent's application to strike out the appeal, holding a conclusive High Court ruling is a decree appealable as of right under s.10 Judicature Act and s.66 Civil Procedure Act, and validated the late filing because the COVID-19 lockdown was sufficient cause. It granted leave to adduce additional evidence. Allowing the appeal save ground 2, it held the trial judge's unrecorded private inquiry, conducted partly without the appellant, breached the right to a fair hearing, that cogent medical evidence was wrongly disregarded, and that court-ordered mental examination is not inherently torture. It declared the respondent had suffered dementia/Alzheimer's since May 2017.

Facts

The respondent is an elderly businessman. His son, the appellant, filed Misc. Cause No. 249 of 2019 in the High Court seeking a determination that the respondent was of unsound mind, a court-appointed psychiatric examination, and his own appointment as manager of the estate. He relied on two 2017 reports by Dr. Farook Maniyar, a UK neurologist, recording cognitive impairment and an Addenbrooke's Cognitive Examination score of 77. The respondent's second wife had barred the appellant and his siblings from the first marriage from accessing the respondent. The trial judge conducted a private inquiry at a hotel, partly in the absence of counsel and the appellant and without any record, and ruled the respondent was not of unsound mind, finding the cause brought in bad faith. The appellant appealed. He later discovered that four of the respondent's sisters had filed Misc. Cause No. 82 of 2023 (dismissed as res judicata) supported by affidavits and by the respondent's own doctors confirming dementia, and that the respondent's counsel had admitted the respondent's mental disability in open court.

Issues

  1. Whether the respondent had a right of appeal against the High Court ruling without first obtaining leave to appeal.
  2. Whether the appeal, filed one month late during the COVID-19 lockdown, should be struck out or validated for sufficient cause.
  3. Whether the affidavit in support of the application to strike out, and the appearing counsel's instructions, were competent.
  4. Whether the appellant should be granted leave to adduce additional evidence of the respondent's mental condition on appeal.
  5. Whether the trial judge's private inquiry, conducted partly in the absence of the appellant and without a record, breached the right to a fair hearing.
  6. Whether the trial judge wrongly disregarded cogent medical evidence of the respondent's mental illness.
  7. Whether a court-ordered involuntary mental health examination amounts to torture or inhuman or degrading treatment.
  8. Whether the cause to determine the respondent's mental status was filed in bad faith.

Orders

  • Civil Application No. 400 of 2021 (to strike out the appeal) dismissed; costs to abide the outcome of the appeal.
  • Civil Application No. 1010 of 2023 allowed; leave granted to adduce the affidavits of the respondent's sisters and uncle, the affidavits of his two doctors, and the record of proceedings in Misc. Cause No. 82 of 2023 as additional evidence; costs to follow the cause.
  • The Registrar to transmit a copy of the ruling to the Law Council to investigate the existence and legality of the instructions of the advocates who appeared for the respondent.
  • Appeal allowed; the ruling and orders of the High Court in Misc. Cause No. 249 of 2019 set aside.
  • Declaration that the respondent has been suffering from Alzheimer's disease/dementia since 18 May 2017 and is unable to manage his affairs.
  • Order allowing the appellant and all the respondent's lineal descendants access to his medical records and participation in the management of his care and treatment.
  • Order allowing all the respondent's lineal descendants and relatives unfettered physical access to him.
  • Order removing the current persons managing the respondent's estate and directing the appellant to convene a family meeting within 30 days to appoint a manager, failing which the court will appoint one.
  • Order that those managing the estate account for all transactions involving the estate from May 2017 within 30 days.
  • Each party to bear its own costs of the appeal.

Key headnotes

Civil Procedure — Appeals — Right of Appeal from Final Orders — Whether Leave Required
A final and conclusive decision of the High Court exercising original jurisdiction is a decree appealable to the Court of Appeal as of right under section 10 of the Judicature Act and section 66 of the Civil Procedure Act; leave to appeal is required only for interlocutory decisions, save for the exceptions in Order 44 and Order 9 rules 8 and 9 of the Civil Procedure Rules.
Civil Procedure — Appeals — Validation of Late Filing — Sufficient Cause — COVID-19 Lockdown
A court may exercise its discretion under Rule 2(2) to validate the late filing of an appeal where sufficient cause prevented timely filing; a nationwide COVID-19 lockdown that prevented advocates from travelling to prepare and lodge the appeal constitutes sufficient cause, and a delay of one month occasioned by it is not undue.
Evidence — Affidavits — Competence of Deponent — Source of Knowledge
An affidavit in support of an application may be sworn by any person having knowledge of the facts, including an advocate, and need not be sworn by a party; but the affidavit must disclose the source of the deponent's knowledge so the court can assess the weight to attach to it.
Civil Procedure — Additional Evidence on Appeal — Conditions for Admission
An appellate court may admit additional evidence where the evidence is new and could not, with due diligence, have been produced at trial, is relevant to the issues, is credible, and would probably influence the result; evidence that came into existence only after the trial is, for that very reason, admissible as additional evidence on appeal.
Constitutional Law — Fair Hearing — Record of Proceedings — Private Inquiry into Mental Health
A judicial officer conducting a private inquiry into a person's mental health must record verbatim everything said by the court, counsel and the person inquired into; conducting an unrecorded closed-door session with one party in the absence of the other violates the non-derogable right to a fair hearing under Articles 28 and 44(c) of the Constitution.
Human Rights — Mental Health — Court-Ordered Examination — Whether Torture or Inhuman Treatment
A court-ordered involuntary mental health examination, carried out in accordance with accepted medical procedures, does not in itself amount to torture or inhuman or degrading treatment; section 3 of the Mental Treatment Act and section 55 of the Mental Health Act expressly authorise courts to direct such examinations.
Evidence — Mental Health — Standard of Proof — Reliance on Medical Evidence
A determination of unsoundness of mind is essentially a medical determination to be decided on internationally accepted medical standards; a trial judge errs in applying a subjective 'glaring proof of insanity' test and in disregarding cogent medical evidence such as a low Addenbrooke's Cognitive Examination score without obtaining a medical interpretation of it.

Legislation cited (31)

  • Judicature Act s.10
  • Judicature Act Cap 13 s.33
  • Civil Procedure Act Cap 71 s.66
  • Civil Procedure Act Cap 71 s.77
  • Civil Procedure Act Cap 71 s.98
  • Civil Procedure Act s.2 (definition of decree)
  • Civil Procedure Rules Order 44
  • Civil Procedure Rules Order 9 rr.8 and 9
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rule 2(2)
  • Judicature (Court of Appeal Rules) Directions Rule 5
  • Judicature (Court of Appeal Rules) Directions Rule 8
  • Judicature (Court of Appeal Rules) Directions Rule 30(1)(a)
  • Judicature (Court of Appeal Rules) Directions Rule 30(1)(b), (2) and (4)
  • Judicature (Court of Appeal Rules) Directions Rule 43(3)
  • Judicature (Court of Appeal Rules) Directions Rule 44(1)
  • Judicature (Court of Appeal Rules) Directions Rule 51
  • Judicature (Court of Appeal Rules) Directions Rule 78(1)
  • Judicature (Court of Appeal Rules) Directions Rule 82
  • Judicature (Court of Appeal Rules) Directions Rule 102(b)
  • Evidence Act ss.4 and 5
  • Evidence Act ss.55 and 56
  • Mental Treatment Act Cap 279 s.2
  • Mental Treatment Act Cap 279 s.3
  • Mental Treatment Act Cap 279 s.45
  • Mental Health Act (Act No. 15 of 2019) ss.50, 52, 55, 60
  • Mental Health Act s.55(1), (2) and (3)
  • Administration of Estates of Persons of Unsound Mind Act s.3
  • Administration of Estates of Persons of Unsound Mind (Procedure) Rules Rule 4
  • Advocates (Professional Conduct) Regulations Regulation 9
  • Constitution of Uganda Articles 28(1), 44(c) and 126(2)(e)
  • Constitution of Uganda Article 137

Cases cited (26)

  • Hwang Sung Ltd v M & D Timber Merchants & Transporters Ltd (Civil Appeal No. 2 of 2018)
  • Denis Bireije v Attorney General (Civil Application No. 37 of 2005)
  • Michael Mabikke v Law Development Centre (Miscellaneous Application No. 16 of 2015)
  • Attorney General v Paul K. Ssemwogerere (Constitutional Application No. 2 of 2004)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Male H. Mabirizi K. Kiwanuka v Attorney General (Miscellaneous Application No. 7 of 2018)
  • Mbarara Municipal Council v Jetha Brothers Ltd (Miscellaneous Application No. 10 of 2021)
  • Commissioner Land Registration & Anor v Emmanuel Lukwago (Civil Application No. 12 of 2016)
  • Ephraim Mutesigwa Kamuguta v The Management Committee of Ngamirimu Primary School (Civil Appeal No. 0701 of 2011)
  • Uganda Development Bank v Kasente Bwamutanga & Co. Advocates (Civil Appeal No. 35 of 1994)
  • Uganda Revenue Authority v Uganda Consolidated Properties Limited (Civil Appeal No. 37 of 2000)
  • Professor Syed Huq v Islamic University in Kampala (Civil Appeal No. 47 of 1995)
  • Nakirubo Road Old Kampala (Kisekka) Market Vendors Ltd & 5 Ors v Kagita Geoffrey (Consolidated Civil Appeals Nos. 0266 and 0297 of 2017)
  • Ponsiano Semakula v Susane Magala and Others 1993 KALR 213
  • Christopher Martin Madrama Izama v Attorney General (Constitutional Appeal No. 1 of 2016)
  • Baku Obudra v Electoral Commission and Attorney General v Shah (1971)
  • Re: Bukeni Gabi Fred HCMA 63/99, [1999] KALR 918
  • In Re: Amangire Mark (Miscellaneous Cause No. 003 of 2018)
  • Re: Songolo Mast Mugabo, HCMC No. 16 of 2019
  • East African Steel Corporation Ltd v Statewide Insurance Co. Ltd [1998 - 2000] HCB 33
  • Jacob Mutabazi v The Seventh Day Adventist Church (Civil Appeal No. 088 of 2011)
  • Nsimbe Godfrey v Uganda (Criminal Appeal No. 361 of 2014)
  • Kuruma s/o Kaniu v R (1955) AC 197
  • Carter v Canada (Attorney General) [2015] 1 SCR 33
  • Re Cathcart [1892] Ch. 466
  • Grannum v Berard, 422 P. 2d 812, 814 (Wash 1967)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.