Wakilii

Bukenya and Ors v Magara (H.C.Miscellaneous Application No. 392 of 2019)

High Court · [2021] UGCOMMC 103 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to dismiss a stay of execution application for being illegal, vexatious, frivolous, incompetent and an abuse of court process
Decision
Application granted; Miscellaneous Application No. 243 of 2019 dismissed with costs to the applicants

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed Miscellaneous Application No. 243 of 2019 for being illegal, vexatious, frivolous, incompetent and an abuse of court process. The respondent had filed a stay of execution application but deliberately excluded 138 judgment holders who were parties to the underlying matter. The respondent failed to file an affidavit in reply within the prescribed time limits under Order 12 rule 2(iii) of the Civil Procedure Rules, instead filing it in the wrong division. The court held that this amounted to negligent conduct and that facts not rebutted in an affidavit are presumed accepted.

Outcome

Application granted; Miscellaneous Application No. 243 of 2019 dismissed with costs to the applicants

Facts

The applicants were 138 holders of a judgment or order of court in Miscellaneous Cause No. 215 of 2018. The 1st respondent filed Miscellaneous Application No. 243 of 2019 seeking a stay of execution of that judgment but deliberately excluded and failed to serve the applicants despite being aware of their interest in the matter. The respondent had previously served the applicants with a Notice of Appeal and a letter requesting the record of proceedings through their lawyers, Lubega, Wandera and Company Advocates. The applicants filed Miscellaneous Application No. 392 of 2019 seeking dismissal of the stay application. The applicants served the respondent on 2 May 2019. The respondent purportedly filed an affidavit in reply but filed it in the Civil Division instead of the Execution Division where the matter was pending. The respondent sought to excuse this as a mistake of counsel and requested time to file a proper reply.

Issues

  1. Whether Miscellaneous Application No. 243 of 2019 should be dismissed for being illegal, vexatious, frivolous, incompetent and an abuse of court process

Orders

  • Miscellaneous Application No. 243 of 2019 is hereby dismissed for being illegal, vexatious, frivolous, incompetent and an abuse of court process.
  • Costs of this application are provided for.

Rules and key headnotes

Civil Procedure — Affidavit Evidence — Failure to File Reply — Presumption of Acceptance
Where facts are sworn to in an affidavit and they are not denied or rebutted by the opposite party, the presumption is that such facts are accepted.
Civil Procedure — Time Limits — Affidavit in Reply — Negligent Conduct
Filing an affidavit in reply in the wrong division of the High Court when the pleadings clearly indicate the correct division amounts to negligent conduct by counsel and does not constitute a mistake or oversight that should excuse non-compliance with procedural rules.
Civil Procedure — Stay of Execution — Abuse of Process — Non-Joinder of Necessary Parties
A stay of execution application that deliberately excludes and fails to serve judgment holders who are affected parties constitutes an abuse of court process rendering the application illegal, vexatious, frivolous and incompetent.

Legislation cited (8)

Cases cited (4)

  • Enerqo Project Niskoqradnja Joint Stock Company v Brigadier Kasirye Gwanga and Another (Miscellaneous Application No. 558 of 2009)
  • Samwiri Massa v Rose Achen (1978) HCB 297
  • Pentecostal Assemblies of God Lira Limited v Pentecostal Assemblies of God and Another (Miscellaneous Application No. 014 of 2018)
  • Captain Phillip Ongom v Catherine Nyero Owota (Supreme Court Civil Appeal No. 14 of 2001)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bukenya and Ors v Magara (H.C.Miscellaneous Application No. 392 of 2019) [2021] UGCommC 103 (3 February 2021)
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.