Wakilii

Kakeeto Hillary Ddungu v Zalwango Miriam and Others (Miscellaneous Application 18 of 2025)

High Court · [2025] UGHC 492 · 2025 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for commission to examine witness arising from pending civil suit for malicious damage, trespass and fraud
Decision
Application dismissed with direction that main suit be expedited

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court dismissed an application for commission to examine a witness in advance of trial. The applicant, aged 87 with medical conditions, sought to preserve his testimony citing ill health and risk of being unable to attend future hearings. The court held that commissions under Section 53 of the Civil Procedure Act and Order 28 of the Civil Procedure Rules are intended for witnesses unable to attend during ongoing trials, not for anticipatory preservation of testimony. The medical evidence did not establish current incapacitation or inability to attend court. The court directed that the main suit be given priority with three consecutive hearing dates in August 2025.

Outcome

Application dismissed with direction that main suit be expedited

Facts

The applicant, Kakeeto Hillary Ddungu, aged 87, is the first defendant in Civil Suit No. 099 of 2024 concerning land comprised in Bulemezi Block 813 Plot 7 at Kakinzi village measuring 141.3 hectares, which he acquired in 1973 as registered proprietor. The respondents sued him for malicious damage, trespass and fraud. After filing his defence, the applicant applied for commission to examine him as a witness, citing advanced age, frail health following prostate surgery two years prior, and ongoing medical treatment including recent travel to Nairobi. He claimed to be the sole surviving witness to the 1973 land transaction. A Joint Scheduling Memorandum had been filed on 27 November 2024. The applicant produced medical records showing diagnosis of benign prostatic hyperplasia and evidence of travel to Nairobi for treatment, from which he returned in May 2025.

Issues

  1. Whether the court should issue commissions for the examination of the applicant.
  2. What remedies are available.

Orders

  • Application dismissed.
  • Each party to bear its own costs.
  • Main suit to be given priority and set down for three consecutive hearing dates in August 2025 to allow the applicant to testify.

Rules and key headnotes

Civil Procedure — Commissions to Examine Witnesses — Conditions for Issuance — Anticipatory Preservation of Testimony
A court may issue a commission to examine a witness under Section 53 of the Civil Procedure Act and Order 28 of the Civil Procedure Rules only where the witness is unable to attend court during ongoing trial proceedings due to sickness, infirmity, or being outside the jurisdiction. The provisions do not permit anticipatory or speculative preservation of testimony in advance of trial based on potential future incapacity.
Evidence — Examination of Witnesses — Medical Incapacity — Standard of Proof
To establish inability to attend court on grounds of sickness or infirmity for purposes of obtaining a commission to examine a witness, the applicant must adduce evidence proving current incapacitation or inability to attend court at an appointed time. Evidence of ongoing medical treatment and advanced age, without proof of being bedridden or unable to move, is insufficient where the witness remains mobile and within the jurisdiction.
Civil Procedure — Scheduling Conference — Timing of Interlocutory Applications
An application for commission to examine a witness is not premature where the parties have already filed a Joint Scheduling Memorandum identifying agreed facts, disputed facts and issues for determination. The purpose of the scheduling conference requirement is to ensure that any commission restricts itself to the issues framed for the court's determination.

Legislation cited (17)

Cases cited (4)

  • Wanyama Manasi and 4 Others v Bwire John Guloba (Court of Appeal No. 017 of 2022)
  • Nsubuga Edward Senveno and 9 Others v Ngambwa Ruta (Miscellaneous Application No. 702 of 2022)
  • Ram Krina Vs F Hardcastle AIR 1963 Mad 103
  • Filmistant Pvt. Ltd Vs Bhagwandas AIR 1971 SC 61

Full judgment

↓ Download PDF

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

Kakeeto Hillary Ddungu v Zalwango Miriam and Others (Miscellaneous Application 18 of 2025) [2025] UGHC 492 (8 July 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.