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Kalyango and 2 Others v Nsubuga and 2 Others (Miscellaneous Application 973 of 2022)

High Court · [2023] UGHCFD 50 · 2023 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of orders setting aside exparte orders that had revoked letters of administration
Decision
Review application partially allowed; earlier ruling setting aside exparte orders confirmed and upheld

Observed later treatment

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Holding

Held that an error apparent on the face of the record existed where the court's ruling stated that the applicants had not filed an affidavit in reply and submissions when registry records showed they had been filed. The court granted the review application and re-examined the underlying application. Upon review, the court upheld its earlier decision to set aside the exparte orders revoking letters of administration, finding that the applicants had shown sufficient cause for non-attendance due to COVID-19 symptoms and that fairness required both parties be heard on the merits.

Outcome

Review application partially allowed; earlier ruling setting aside exparte orders confirmed and upheld

Facts

The applicants held letters of administration to the estate of the late Jafaali Kibuuka Sendege granted by Mukono Chief Magistrates Court in 2011. The respondents also held letters of administration to the same estate granted by the High Court in 2016. The applicants instituted Civil Suit No. 254 of 2017 against the respondents. On 25 October 2021, when the suit came up for hearing, neither the applicants nor their counsel attended. Counsel for the respondents made an oral application to revoke the applicants' letters of administration, which the court granted exparte. The applicants later filed Miscellaneous Application No. 311 of 2022 to set aside the exparte orders, claiming they had COVID-19 symptoms and their counsel was delayed. The court granted that application and set aside the exparte orders. The applicants then filed this review application, contending that the court's ruling in Miscellaneous Application No. 311 of 2022 erroneously stated they had not filed a reply and submissions when they had done so on 23 June 2022.

Issues

  1. Whether the application meets the criteria for review under section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules.
  2. Whether there was an error apparent on the face of the record in the ruling in Miscellaneous Application No. 311 of 2022.
  3. What remedies are available to the parties.

Orders

  • The orders issued in Miscellaneous Application No. 311 of 2022 delivered on 24 August 2022 setting aside the exparte orders issued on 25 October 2021 in Civil Suit No. 254 of 2017 are upheld.
  • Each party shall bear their own costs.

Rules and key headnotes

Civil Procedure — Review of Judgments — Grounds for Review — Error Apparent on Face of Record
An error apparent on the face of the record must be self-evident and strike one on mere looking at the record without requiring a long drawn process of reasoning on points where there may conceivably be two opinions. Where a court's ruling states that pleadings were not filed when registry records show they were received and filed, this constitutes an error apparent on the face of the record warranting review.
Civil Procedure — Review of Judgments — Aggrieved Person — Locus Standi
A person considers himself aggrieved if he has suffered a legal grievance, meaning the judgment is given against him or affects his interest. Where a party's pleadings and submissions were not considered in a ruling due to misfiling, that party is an aggrieved person entitled to bring a review application.
Civil Procedure — Setting Aside Exparte Orders — Sufficient Cause — COVID-19 Pandemic
Under Order 9 rule 27 of the Civil Procedure Rules, an exparte decree may be set aside where the defendant satisfies the court that he was prevented by sufficient cause from appearing when the suit was called for hearing. During the COVID-19 pandemic, non-attendance due to COVID-19 symptoms constitutes sufficient cause, particularly where Standard Operating Procedures required persons with such symptoms to isolate, even in the absence of medical proof.
Civil Procedure — Setting Aside Exparte Orders — Scope of Inquiry — Merits vs Procedural Propriety
When an application seeks to set aside orders made exparte, the inquiry should focus on whether the matter justifiably proceeded exparte, not on the merits of the decision. Going into the merits would amount to taking over the powers of appeal or revision. What is required is for the applicant to show specific, diligent and justifiable reasons for failure to attend court.
Administrative Law — Fair Hearing — Right to Be Heard — Exparte Orders
The constitutional right to fair hearing under Article 44 of the Constitution requires that parties be accorded an opportunity to be heard before orders affecting their rights are made. Where letters of administration are revoked exparte without the affected party being heard, this infringes the right to fair hearing, and the ends of justice require that the exparte orders be set aside to afford both parties the occasion of adducing evidence and being heard on the merits.

Legislation cited (13)

Cases cited (5)

  • Mohamed Allibhai v W.E Bukenya Mukasa & Departed Asians Property Custodian Board (Supreme Court Civil Appeal No. 56 of 1996)
  • FX Mubuuke v UEB (High Court Miscellaneous Application No. 9 of 2005)
  • Medico Legal Unit v Attorney General of the Republic of Kenya (EACJ Application No. 02 of 2012)
  • Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers' Society & 2 Others (Miscellaneous Application No. 696 of 2018)
  • Rawal v Mombasa Hardware Ltd (1968) EA 392

Full judgment

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Kalyango and 2 Others v Nsubuga and 2 Others (Miscellaneous Application 973 of 2022) [2023] UGHCFD 50 (21 January 2023)
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.