Wakilii

Katunku & 8 Others v Hashim & Another (Miscellaneous Application 94 of 2024)

High Court · [2024] UGHC 816 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review and setting aside of consent judgment in Civil Suit No. 23 of 2024 which led to demolition of applicants' property
Decision
Application granted; consent judgment set aside (save for executed orders); demolition declared illegal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted the application for review of a consent judgment which had resulted in the demolition of the applicants' property. The court held that the demolition procedure was unlawful as it violated the constitutional right to property by failing to give adequate notice and by proceeding without joining parties with known equitable interests in the property. The court found that the consent judgment entered between the registered proprietor and Mbale City concealed the applicants' occupation from the court and was executed without the Attorney General's approval as required by Article 119(5) of the Constitution. The consent judgment was set aside save for executed declarations.

Outcome

Application granted; consent judgment set aside (save for executed orders); demolition declared illegal

Facts

The applicants had been in continuous possession of property in Mbale City since 1986 following an allocation to their late mother Edith Mary Katunku. The first respondent became the registered proprietor of the land but never took possession. The second respondent (Mbale City) and the first respondent entered into a consent judgment in Civil Suit No. 23 of 2024 for demolition of the property on grounds of public health. The applicants were not parties to that suit despite both respondents' knowledge of their occupation. The consent judgment was endorsed on 3 May 2024 and the property was demolished on 24 May 2024 without adequate notice to the applicants. The applicants had an ongoing civil suit (No. 73 of 2022) regarding their claim to the property, of which both respondents were aware.

Issues

  1. Whether the Application is properly before the court?
  2. Whether the demolition procedure was lawful?
  3. Whether the 2nd Respondent's affidavit in reply is properly before court having been filed out of time without leave of court?
  4. Whether the 2nd Respondent's plaint in HCCS No. 23 of 2024 leading to the consent order was lawful without involvement of Attorney General?
  5. Whether the Applicants have sufficient grounds to review and set aside a consent judgment in Civil Suit No. 23 of 2024?
  6. What remedies are available to the parties?

Orders

  • It is declared that the demolition of the Applicants' buildings did not follow the procedures provided for in the law hence, it was illegal.
  • The orders issued in the consent judgment in Civil Suit No. 23 of 2024 are hereby set aside save for the orders and declarations 1 to 4 which have already been executed.
  • Costs of this application are awarded to the Applicants.

Rules and key headnotes

Review of Judgment — Aggrieved Persons — Locus Standi
Parties who consider themselves aggrieved by a decision of court to which they were not parties may institute their matters by way of review under section 82 of the Civil Procedure Act and Order 46 rule 1 of the Civil Procedure Rules. Applicants in continuous possession of property who were not joined as parties to a consent judgment ordering demolition of that property are aggrieved persons entitled to seek review.
Property Rights — Eviction and Demolition — Notice Requirements
Article 26 of the Constitution protects the right to property. A court shall, when issuing an order of eviction or demolition, issue adequate and reasonable notice of not less than ninety days and not more than one hundred and twenty days to the affected person or persons as required by paragraph 9(1) of the Constitution (Land Eviction) (Practice) Directions 2021. A demolition carried out within 14 days of the consent judgment violates this requirement and is unlawful.
Equitable Interests — Bonafide Occupants — Rights of Possession
Where a local government authority has knowledge of equitable interests in registered land, including claims by bonafide occupants who have been in continuous possession since the 1970s, such occupants must be joined as parties to proceedings seeking demolition of structures on that land. Failure to join parties with known equitable interests constitutes a mistake of fact rendering the resulting order irregular.
Attorney General — Approval of Consent Judgments — Local Government
Article 119(5) of the Constitution provides that no agreement, contract, treaty, convention or document to which the Government is a party or in respect of which the Government has an interest shall be concluded without legal advice from the Attorney General. A consent judgment entered into by a local government authority is in the form of an agreement that requires approval of the Attorney General before execution, regardless of whether it has monetary implications. The critical consideration is whether the agreement could lead to litigation against the Attorney General.
Review of Judgment — Error Apparent on Face of Record — Concealment of Material Facts
Where both parties to a consent judgment have knowledge of the existence of third parties with interests in the subject matter but conceal that information from the court, causing the court to issue an order in ignorance of those interests, this constitutes an error apparent on the face of the record justifying review. The conduct amounts to fraud and collusion rendering the consent judgment and orders irregular.
Review of Judgment — New and Important Evidence — Pending Suits
The existence of a pending suit concerning the same property constitutes new and important evidence that the applicants could not produce at the time the decree was passed because they were not parties to that suit. If applicants had been informed of proceedings affecting their property interests, they would have been able to adduce evidence regarding the pending suit, which court had no knowledge of when granting the consent judgment.

Legislation cited (16)

Cases cited (5)

  • Edison Kanyabwera v Pastori Tumwebaze (Supreme Court Civil Appeal No. 6 of 2004)
  • FX Mubuuke v UEB (High Court Miscellaneous Application No. 98 of 2005)
  • Kasirye Byaruhanga & Co. Advocates v Uganda Development Bank (Supreme Court Civil Application No. 2 of 1997)
  • Aribariho Andrew v Nakayiki Gilaida (Miscellaneous Application No. 56 of 2021)
  • Mbale District Local Government v Samuel Wegoye Advocates (High Court Miscellaneous Application No. 009 of 2024)

Full judgment

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

Katunku & 8 Others v Hashim & Another (Miscellaneous Application 94 of 2024) [2024] UGHC 816 (4 September 2024)
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.