Kawoya v Mawalazi (Ma No. 87 of 2013)

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.

Holding

On a preliminary objection to an application for review of judgment, the court held that a person not party to proceedings can qualify as an aggrieved person if the judgment affects their interests, even where the factual correctness of that claim is contested. The applicant, claiming to be registered proprietor of land affected by an ex parte judgment in which he was not made a party, qualified as aggrieved for purposes of Order 46 rule 1. Questions of whether apparent errors exist or whether affidavit evidence is sufficient are matters for the merits, not preliminary objection.

Outcome

Preliminary objection dismissed; matter to proceed to hearing on merits

Facts

The applicant, claiming to be registered proprietor of Block 17 Plot 604 having purchased it from N and K Estates Ltd, sought review of an ex parte judgment in Civil Suit No. 420/2010. That suit had been filed against the Administrator General and Registrar of Titles and resulted in a default judgment with orders including an injunction and registration of administrators of the estate of Mesusera Tebazalika in respect of the same plot. The applicant was not made a party to the original suit. He claimed the judgment adversely affected his interests as registered proprietor and that the respondent did not disclose relevant information about proprietorship. The respondent raised a preliminary objection that the application failed to identify specific paragraphs, sentences or words to be reviewed, did not identify which order should be varied, showed no apparent error on the face of the record, and that the applicant could not be aggrieved since he claimed to be in possession.

Issues

1. Whether the applicant is an aggrieved party for purposes of applying to have an ex parte judgment set aside under Order 46 rule 1 of the Civil Procedure Rules.
2. Whether the applicant identified the orders to be reviewed in the application.
3. Whether apparent errors on the face of the record have been identified by the applicant.

Orders

• Preliminary objection overruled.
• Applicant permitted to proceed with the application.
• Costs of the preliminary objection awarded to the applicant.

Rules and key headnotes

Legislation cited (2)

• Civil Procedure Act s.82
• Civil Procedure Rules O.46 r.1

Cases cited (3)

• Muhamed Alibhai v Bukenya (SCCA No. 56 of 1986)
• Ladak Abdulla Muhamed Hussein v Griffiths Isingoma Kakiiza & Others (Civil Appeal No. 08 of 1995)
• Mukisa Biscuit Manufacturing Co v West End [1969] EA 696

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