Wakilii

Kassim v Ochieng & 2 Others (Miscellaneous Application 52 of 2025)

High Court · [2025] UGHC 366 · 2025 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside exparte proceedings and for leave to cross-examine and lead evidence, arising from Civil Suit No. 053 of 2021
Decision
Application partly allowed — applicant permitted to lead defence evidence but not to set aside proceedings or cross-examine witness

Observed later treatment

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Holding

The court held that proceedings where a party is represented by counsel cannot be exparte. The applicant's counsel deliberately chose not to cross-examine the 1st respondent, which was a litigation strategy, not negligence. The court rejected the application to set aside proceedings and recall the witness for cross-examination but allowed the applicant to present his defence evidence in the interest of substantive justice.

Outcome

Application partly allowed — applicant permitted to lead defence evidence but not to set aside proceedings or cross-examine witness

Facts

Civil Suit No. 53 of 2021 came up for hearing on 18 March 2025. The applicant's lead counsel Mr. Okuku James was absent, allegedly indisposed. Mr. George Muhangi appeared holding brief and informed court he was not ready to proceed. The court declined the adjournment request and ordered the matter to proceed. When given the opportunity to cross-examine the 1st respondent, Mr. Muhangi deliberately declined. The 1st respondent closed his case, and the 2nd and 3rd respondents gave their defence. The applicant then brought this application seeking to set aside the proceedings as exparte, to cross-examine the 1st respondent, and to lead his own evidence. The respondents opposed, arguing the proceedings were not exparte as the applicant was represented by counsel who made a conscious choice not to cross-examine.

Issues

  1. Whether the proceedings of 18 March 2025 were exparte and should be set aside.
  2. Whether the applicant's affidavits in support and in rejoinder were properly executed and admissible.
  3. Whether the applicant should be granted leave to cross-examine the 1st respondent.
  4. Whether the applicant should be allowed to lead his evidence in court.

Orders

  • The applicant's prayers to set aside the exparte proceedings of 18/3/2025 denied.
  • The applicant's prayer to recall the 1st respondent for cross-examination denied.
  • The applicant allowed to appear in court in person to give evidence in his defence in Civil Suit No. 53 of 2021 on 10 July 2025 at 2pm.
  • Costs of this application to be in the cause.

Rules and key headnotes

Civil Procedure — Exparte Proceedings — Definition and Requirements
Proceedings cannot be characterised as exparte where a party is duly represented by an advocate who appears in court, even if that advocate chooses not to exercise the right to cross-examine a witness.
Evidence — Cross-Examination — Right to Waive
Cross-examination of a witness is not mandatory; a party may choose to waive that right, and such a decision by counsel represents a litigation strategy rather than negligence.
Civil Procedure — Advocate Holding Brief — Presumption of Instructions
An advocate holding brief for another advocate is ordinarily presumed to have instructions to proceed in the matter, as provided in the Constitution (Adjournments for Courts of Judicature) (Practice) Directions, 2019.
Constitutional Law — Substantive Justice — Application of Article 126(2)(e)
Where adherence to procedural technicalities may deny a party substantive justice, courts should invoke Article 126(2)(e) of the Constitution to administer justice without undue regard to technicalities.
Evidence — Affidavits — Illiterates Protection Act Compliance
An affidavit for an illiterate person complies with the Illiterates Protection Act where it bears a certificate of translation indicating the language in which the contents were explained to the deponent; the manner and style in which the certificate appears is immaterial.
Evidence — Affidavits — Commissioner for Oaths Requirements
Section 6 of the Oaths Act requires a commissioner for oaths to state in the jurat the place and date on which an affidavit is taken; however, where the affirmant's signature and the commissioner's signature appear on the same page with a date indicated, non-compliance may be cured as a legal technicality under Article 126(2)(e) of the Constitution.

Legislation cited (11)

Cases cited (5)

  • Simbamanyo Estates Limited v Equity Bank Uganda Limited and 2 Others (Miscellaneous Application No. 660 of 2022)
  • Mugema Peter v Mudiobole Nassar (Civil Appeal No. 16 of 2016)
  • Horizon Coaches v Edward Rurangaranga and Another (Supreme Court Civil Appeal No. 18 of 2009)
  • Zam Nalumansi and Another v Sulaiman Lule (Supreme Court Civil Appeal No. 02 of 1992)
  • Nelson Lukozi v Simba Telecom Limited and Another (Court of Appeal Miscellaneous Application No. 235 of 2019)

Full judgment

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

Kassim v Ochieng & 2 Others (Miscellaneous Application 52 of 2025) [2025] UGHC 366 (30 May 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.