Wakilii

Housing Finance Bank Limited v Kisembo Henry Clarke (Originating Summons No. 7 of 2025)

High Court · [2026] UGCOMMC 200 · 2026 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance originating summons for vacant possession of mortgaged property
Decision
Suit dismissed but plaintiff awarded costs due to defendant's uncontroverted indebtedness

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the plaintiff bank's originating summons for vacant possession of mortgaged property. Although the defendant had defaulted on loan facilities totaling UGX 296,000,000 secured by mortgages over condominium properties, the court found that the originating summons procedure was inappropriate because the defendant contested the amounts claimed. The notice of default stated UGX 150,730,480 was due, while the plaintiff's affidavit claimed UGX 184,867,715 and UGX 156,779,223. The court held that this factual dispute required oral evidence and could not be resolved by affidavit alone. Costs were awarded to the plaintiff despite dismissal of the suit.

Outcome

Suit dismissed but plaintiff awarded costs due to defendant's uncontroverted indebtedness

Facts

Housing Finance Bank advanced the defendant two loan facilities of UGX 150,000,000 and UGX 146,000,000 under facility agreements dated 4 April 2018 and 23 July 2019, secured by legal mortgages over condominium properties in Wakiso District. The defendant defaulted on repayment obligations. The bank issued a notice of default dated 13 June 2024 and a notice of sale dated 27 August 2024, instructing advocates to advertise and sell the properties. The properties were advertised for public auction but the defendant refused access for inspection and declined to deliver vacant possession. The defendant disputed the amounts claimed, noting that the notice of default stated UGX 150,730,480 was due, not the higher sums alleged in the bank's affidavit. The defendant also contended that ongoing engagements aimed at rescheduling the debt had not concluded.

Issues

  1. Whether the plaintiff is entitled to an order of vacant possession of the mortgaged property.
  2. Whether the plaintiff should be granted the costs of this suit.

Orders

  • Suit dismissed.
  • Costs awarded to the plaintiff.

Rules and key headnotes

Civil Procedure — Originating Summons — Appropriateness of Procedure — Contested Facts
Originating summons procedure is intended for expeditious determination of matters involving points of law, construction of documents, or limited factual inquiry where no substantial dispute of fact exists. Where facts material to the relief sought are expressly contested by a party, the originating summons procedure is inappropriate and the matter cannot be satisfactorily determined on affidavit evidence alone.
Banking & Finance — Mortgage Enforcement — Vacant Possession — Contested Debt Amount
A mortgagee seeking an order for vacant possession by originating summons under Order 37 rule 4 of the Civil Procedure Rules must establish the amount due and owing with certainty. Where the mortgagor contests the figures claimed and the mortgagee's notice of default states a different sum from that claimed in the supporting affidavit, the court will decline to grant vacant possession as the factual dispute requires oral evidence.
Civil Procedure — Costs — Discretion — Unsuccessful Party Awarded Costs
Although costs are awarded at the discretion of the court and ordinarily follow the event, a successful defendant may be deprived of costs where the existence of indebtedness remains uncontroverted and the plaintiff cannot be faulted for having pursued recovery through lawful, albeit procedurally unsuccessful, means.

Legislation cited (6)

Cases cited (4)

  • General Parts (U) Ltd & Another v Non Performing Recovery Trust (Supreme Court Civil Appeal No. 49 of 2004)
  • Letshego Uganda Limited v Kulayige (Originating Summons No. 5 of 2020)
  • Nakabugo v Serunjogi [1981] HCB 58
  • UDB v Muganga Construction Co. Ltd [1981] HCB 35

Full judgment

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

Housing Finance Bank Limited v Kisembo Henry Clarke (Originating Summons No. 7 of 2025) [2026] UGCommC 200 (14 February 2026)
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.