Wakilii

Housing Finance Bank v Kiganda Jalia (Miscellaneous Cause No. 12 of 2025)

High Court · [2025] UGHC 1090 · 2025 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for vacant possession of mortgaged property under Order 52 Rules 1 and 3 CPR, Section 98 Civil Procedure Act, and Section 33 Judicature Act
Decision
Application for vacant possession dismissed as premature and procedurally defective due to non-compliance with Mortgage Act notice requirements

Observed later treatment

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Holding

The High Court dismissed the application for vacant possession. While the court found that the respondent remained indebted to the applicant bank in the sum of UGX 102,621,807.24, the applicant failed to prove compliance with mandatory procedural requirements under the Mortgage Act, specifically proper service of the notice of default and notice of sale on the mortgagor. Without such compliance, the mortgagee cannot lawfully exercise powers of sale or eviction. The application was therefore premature and procedurally defective.

Outcome

Application for vacant possession dismissed as premature and procedurally defective due to non-compliance with Mortgage Act notice requirements

Facts

Housing Finance Bank advanced a loan of UGX 180,000,000 to Kiganda Jalia on 23 March 2018, secured by a legal mortgage over property in Busiro Block 322 Plot 175 at Kapeka-Buloba, Wakiso District. The respondent defaulted on repayment. The bank claimed the respondent owed UGX 102,621,807.24 after the loan was written off on 31 May 2024. The bank issued a notice of default dated 31 May 2023 and a notice of sale dated 18 October 2023, and advertised the property for sale on 27 December 2023. The respondent refused to vacate the property. The respondent denied receiving any notices and claimed she had repaid UGX 350,000,000. The bank applied for vacant possession. The court directed cross-examination to clarify conflicting evidence regarding the debt amount and service of statutory notices.

Issues

  1. Whether the Applicant is entitled to an order of vacant possession of the mortgaged property comprised in Busiro Block 322 Plot 175 at Kapeka - Buloba in Wakiso District.
  2. Whether the Respondent is indebted to the Applicant.
  3. Whether the Applicant fulfilled the requirements under the Mortgage Act.
  4. What remedies are available to the parties.

Orders

  • Application dismissed.
  • No order as to costs.

Rules and key headnotes

Mortgage Law — Mortgagee's Power of Sale — Mandatory Compliance with Statutory Notice Requirements
A mortgagee seeking to exercise the power of sale under Section 25 of the Mortgage Act must prove both the existence of a default and compliance with the statutory requirements under Section 18 of the Act, including demonstrating that the mortgagor was served with a valid notice of default in the prescribed form and that the mortgagor failed to remedy the default within the time stipulated in the notice.
Mortgage Law — Service of Notices — Requirements under Mortgage Regulations
Under Regulation 6(1) of the Mortgage Regulations, every notice required by the Mortgage Act must be sent to the address given by the mortgagor at the time of entering into the mortgage. Where the mortgagor does not give an address or the address becomes ineffective, the notice must be published in a newspaper of wide circulation in the area where the property is situated. Service by WhatsApp or email, without proof of receipt, does not satisfy the statutory requirement of service in writing.
Banking Law — Loan Accounts — Burden of Proof of Indebtedness
Where a bank produces a bank statement showing an outstanding loan balance and provides a satisfactory explanation for figures appearing therein, including write-offs and partial redemptions, this constitutes prima facie proof of indebtedness and shifts the onus onto the borrower to rebut it with cogent and verifiable evidence of repayment. Bare assertions of payment, unsupported by receipts, bank statements, or other documentary proof, cannot displace the bank's documentary evidence.
Functus Officio — Court's Jurisdiction to Continue Proceedings After Interlocutory Ruling
A court is functus officio only when it has exhausted its authority to act on a matter and the proceedings have been finally determined. Where a court declines to grant relief at an interlocutory stage due to evidential deficiencies and directs parties to appear for cross-examination to clarify disputed issues, the court remains seized of the matter and retains full jurisdiction to determine the application after the evidence has been properly adduced.
Costs — Discretion to Deny Costs to Successful Party
Although costs ordinarily follow the event, a court may in the exercise of its discretion under Section 27 of the Civil Procedure Act decline to award costs to a successful party where such an award would be inconsistent with justice, fairness, and equity. A party who is indebted and has failed to meet legal obligations should not benefit from their own default by receiving costs.

Legislation cited (22)

Cases cited (4)

Full judgment

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Housing Finance Bank v Kiganda Jalia (Miscellaneous Cause No. 12 of 2025) [2025] UGHC 1090 (10 October 2025)
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.