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Kenya Commercial Bank (Uganda) Ltd v Olive Zaitun Kigongo and Another (Miscellaneous Appeal No. 7 of 2026)

High Court · [2026] UGCOMMC 218 · 2026 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the decision of the Registrar granting a temporary injunction without imposing a mandatory 30% security deposit under the Mortgage Regulations
Decision
Appeal dismissed; unconditional temporary injunction restraining foreclosure upheld pending determination of the main suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal, upholding the Registrar's grant of an unconditional temporary injunction. While the Court found that Regulation 13 of the Mortgage Regulations 2012 was triggered and that the supplementary affidavit was improperly admitted, it held that the Registrar correctly exercised discretion under Regulation 13(6) to waive the mandatory 30% security deposit for the widow of the mortgagor. The Court struck out fresh evidence introduced by the appellant on appeal and ruled that requiring a widow with minor children to deposit a substantial sum before her case of bank negligence could be heard would effectively shut the doors of the court.

Outcome

Appeal dismissed; unconditional temporary injunction restraining foreclosure upheld pending determination of the main suit

Facts

The late Cedric Ndilima Babu obtained a USD 200,000 mortgage facility from Kenya Commercial Bank secured by property in Kololo. Following his death in May 2025, the loan fell into default with an outstanding balance of USD 182,710. The bank issued a Notice of Default on 30 October 2025. The deceased's widow and mother, as administrators of his estate, filed suit alleging the bank's negligence in allowing mortgage protection insurance to lapse, and sought an injunction to stop foreclosure. The bank issued a notice of sale on 9 February 2026 while the injunction application was pending. The Registrar granted an unconditional temporary injunction on 23 February 2026, declining to impose the mandatory 30% security deposit under Regulation 13 of the Mortgage Regulations. The bank appealed, arguing the deposit was mandatory and that the Registrar improperly waived it based on the widow's spousal status without proper pleading or evidence.

Issues

  1. Whether fresh evidence contained in the appellant's affidavit was inadmissible for failure to obtain leave of court.
  2. Whether the Registrar erred in accepting and relying on the respondents' supplementary affidavit filed without leave of court.
  3. Whether Regulation 13 of the Mortgage Regulations 2012 was triggered by the application to restrain foreclosure.
  4. Whether the Registrar descended into the arena by determining the case on an unpleaded ground relating to spousal status.
  5. Whether there was sufficient evidence that the second respondent was a spouse entitled to relief from the 30% security deposit requirement.
  6. Whether the Registrar properly exercised discretion to waive the 30% security deposit under Regulation 13(6) of the Mortgage Regulations.

Orders

  • Grounds 1 and 2 of the appeal allowed to the extent that the supplementary affidavit is struck out and Regulation 13 held to have been triggered.
  • Grounds 3, 4, and 5 dismissed.
  • Appeal dismissed in its entirety.
  • Ruling and orders of the Registrar in Miscellaneous Application No. 2911 of 2025 granting unconditional temporary injunction upheld.
  • Costs of the appeal awarded to the respondents.

Rules and key headnotes

Civil Procedure — Appeals — Fresh Evidence — Admissibility on Appeal
Fresh evidence may only be admitted on appeal where it could not have been obtained with reasonable diligence for use at trial, or where the court requires it to pronounce judgment. A party who was the author and custodian of documents from the outset cannot claim surprise to justify introducing them as fresh evidence on appeal.
Civil Procedure — Pleadings — Supplementary Affidavits — Filing Without Leave
A supplementary affidavit filed after closure of evidence and without leave of court denies the adverse party an opportunity to counter such evidence, amounts to trial by ambush, and contravenes the principle of fair hearing. Once pleadings are closed under Order 8 Rule 18 of the Civil Procedure Rules, no further pleading may be filed without leave of court.
Banking & Finance — Mortgage Foreclosure — Regulation 13 Mortgage Regulations — When Triggered
The mandatory 30% security deposit requirement under Regulation 13 of the Mortgage Regulations 2012 is triggered once the foreclosure process commences with the issuance of a Notice of Default under Section 18 of the Mortgage Act. Any application filed thereafter seeking to restrain the mortgagee from selling, auctioning, or foreclosing is in effect an application to stop or adjourn the realization of security, regardless of how the application is titled or whether an auction date has been scheduled.
Banking & Finance — Mortgage Foreclosure — Spousal Exception — Regulation 13(6) Discretion
Regulation 13(6) of the Mortgage Regulations 2012 creates a discretionary exception to the mandatory 30% security deposit where the application is brought by the spouse of a mortgagor. The provision uses the non-obstante clause 'notwithstanding' to override Regulation 13(1) and empowers the court to determine whether the spouse shall pay the deposit. This discretion must be exercised by considering factors including the length of cohabitation, financial resources of the spouse, availability of alternative accommodation, presence of children, the amount of debt, and whether payment would result in irreparable financial hardship.
Civil Procedure — Judicial Discretion — Descent into the Arena — Application of Statutory Exceptions
A judge does not descend into the arena by applying a mandatory statutory exception that arises naturally from the evidence and the nature of the law invoked, even where the exception was not specifically labeled as a ground in the pleadings. Where material facts establishing spousal status are properly on the record, the court fulfills its statutory duty by considering the discretionary provision under Regulation 13(6) without requiring the applicant to explicitly title the application as a 'Spousal Application.'
Land & Property — Matrimonial Home — Spousal Right of Occupancy — Protection from Foreclosure
Where mortgaged property serves as the matrimonial home in which a widow and minor children continue to reside, and the widow challenges the mortgagee's negligence regarding mortgage protection insurance, requiring the widow to deposit a substantial sum before her case can be heard would have the practical effect of shutting the doors of the court. The loss of one's primary residence constitutes irreparable injury because the logistical and social harm to a family goes beyond the measurable market value of the property.
Statutory Interpretation — Non-Obstante Clauses — Effect on Mandatory Provisions
The use of 'notwithstanding' in Regulation 13(6) of the Mortgage Regulations 2012 is a powerful legislative non-obstante clause that overrides the mandatory nature of the 30% security deposit in Regulation 13(1) and grants the court unique discretionary power where a spouse's right of occupancy is at stake. The provision creates an equitable safety valve within the general 'pay now, argue later' rule.

Legislation cited (11)

Cases cited (21)

  • ABP Technology Limited v Voyetra Turtle Beach Incorporated and Another [EWCA Civ 594]
  • Surgipharm (U) Limited v Uganda Investment Authority and Another (HCMC No. 65 of 2021)
  • I&M Bank Uganda Limited v Nadia Manji and Another (Miscellaneous Appeal No. 18 of 2023)
  • The Emin Pasha Limited and 2 Others v Equity Bank Uganda Ltd and Another (Miscellaneous Appeal No. 49 of 2025)
  • Al-Medenni v Mars UK Ltd [EWCA Civ 1041]
  • Huseyin Ali v Ismet Dinc and Another [EWCA Civ 34]
  • Nakato Margaret v Housing Finance Bank Limited and Another (HC Miscellaneous Appeal No. 687 of 2021)
  • Kakooza Abdulla v Stanbic Bank Uganda Limited (Miscellaneous Application No. 614 of 2012)
  • Aluma Michael Bayo and Others v Said Nasur Okuti (Miscellaneous Civil Application No. 12 of 2016)
  • Housing Finance Bank Limited v Silk Events Limited and Another (Civil Appeal No. 300 of 2021)
  • Hon. Anthony Kanyike v Electoral Commission and 2 Others (Civil Application No. 13 of 2006)
  • Ladd v Marshall [1954] 1 WLR 1489
  • M. Buwule v Asuman Mugenyi (SC Civil Application No. 36 of 2019)
  • Makula International Ltd v His Eminence Cardinal Nsubuga (HCB 11)
  • J.W.R. Kazzora v M.L.S. Rukuba (SCCA No. 13 of 1992)
  • Mutembuli Yusuf v Nagwomu Moses Musamba and Another (EP Appeal No. 43 of 2016)
  • Performance Furnishings (U) Ltd and Another v Diamond Trust Bank (U) Ltd (HCMA No. 278 of 2020)
  • Medard Matsiko v Equity Bank Uganda Ltd (HCMA No. 204 of 2022)
  • Morjaria Maheshwery Purshotam v Stanbic Bank Uganda Ltd (HCMA No. 191 of 2022)
  • Kingston Enterprises Ltd and 3 Others v Standard Chartered Bank (U) Ltd (HCCA No. 446 of 2021)
  • Nalule Mariam and 3 Others v Sengendo Swaibu (HCMA No. 302 of 2012)

Full judgment

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

Kenya Commercial Bank (Uganda) Ltd v Olive Zaitun Kigongo and Another (Miscellaneous Appeal No. 7 of 2026) [2026] UGCommC 218 (30 April 2026)
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.