Wakilii

Khauka and 4 Others v Mbabazi and 8 Others (Miscellaneous Application 11 of 2022)

High Court · [2023] UGHC 96 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to review and set aside consent judgment entered in representative suit
Decision
Consent judgment set aside; injunction granted preventing eviction of residents from suit land

Observed later treatment

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Holding

Held that the consent judgment in Civil Suit No. 46 of 2019 was procured irregularly because the representative order issued to the first respondent did not comply with Order 1 rule 8 of the Civil Procedure Rules. The residents were never verified, their written authorisation was not obtained, no list of represented persons was provided, and no public notice was given. The suit was filed before the representative order was issued. Court cannot endorse an illegality. Application allowed, consent judgment set aside, and injunction granted against further eviction.

Outcome

Consent judgment set aside; injunction granted preventing eviction of residents from suit land

Facts

The first respondent filed Civil Suit No. 46 of 2019 as a representative suit on behalf of 350 residents of three villages claiming fraudulent registration and grant of a certificate of title for land described as LRV MAS2 Folio 8 Plot 22 Block 8. The first respondent entered into consent with the second to ninth respondents whereby the defendants agreed to compensate occupants, and the plaintiff agreed to withdraw the suit and the caveat. The applicants, who were residents of the land, alleged they were never consulted about the consent and only discovered it at execution. They brought this application to set aside the consent judgment on grounds of lack of consent, fraud, illegality and collusion. The respondents contended that mediation was successful, residents approved the consent, and compensation had commenced.

Issues

  1. Whether the applicant has sufficient grounds for review of the consent judgment.
  2. What remedies are available to the parties.

Orders

  • Consent judgment in Civil Suit No. 0046 of 2019 and orders therein is hereby set aside.
  • An injunction against the respondents, their agents or any person attaining authority from them stopping them from further evicting any residents from the suit land.
  • Costs for this application granted to the applicants.

Rules and key headnotes

Civil Procedure — Representative Suits — Requirements for Representative Order — Order 1 Rule 8 Civil Procedure Rules
Before a court grants an order for a representative suit, the applicant must satisfy the court that all persons represented have authorised the applicant to sue or defend in writing duly signed by the represented persons, and the application must be brought with a list of all persons represented showing that all have the same actual and existing interest in the suit. These requirements are mandatory and non-compliance renders the suit incompetent.
Civil Procedure — Representative Suits — Notice Requirements — Public Advertisement or Personal Service
Where a representative order is granted, the court must give notice of the institution of the suit to all persons represented either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement as the court may direct. Failure to give such notice is a procedural irregularity.
Civil Procedure — Representative Suits — Consent Judgments — Authority to Enter Consent on Behalf of Represented Persons
Where a representative plaintiff enters into a consent judgment without consulting or obtaining authority from the persons represented, and those persons only become aware of the consent at execution, the consent judgment is liable to be set aside for lack of proper authority and for being procured irregularly.
Civil Procedure — Consent Judgments — Grounds for Setting Aside — Illegality
A consent judgment may be set aside where it is proved that it was entered into without sufficient material facts, in misapprehension or ignorance of material facts, or was actuated by illegality, fraud, mistake, or contravention of court policy. Once a court is notified of an illegality, it cannot sanction it merely because one party will incur great losses.
Civil Procedure — Representative Suits — Timing of Application for Representative Order
A suit filed before a representative order is obtained is procedurally defective. The representative order must precede the filing of the representative suit. Filing a suit and only subsequently obtaining a representative order does not cure the irregularity.

Legislation cited (7)

Cases cited (5)

  • Kizza Daniel and Others v Uganda Land Commission and Others (HCMA No. 1237 of 2013)
  • Fredrick Zaabwe v Orient Bank Ltd and Others (SCCA No. 4 of 2006)
  • Henry B. Kamoga and Others v Bank of Uganda (HCCS No. 62 of 2009)
  • Makula International Ltd v Cardinal Nsubuga (SCCA No. 4 of 1981)
  • Kisugu Quarries Ltd v Administrator General (1999) 1 EA 162

Full judgment

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

Khauka and 4 Others v Mbabazi and 8 Others (Miscellaneous Application 11 of 2022) [2023] UGHC 96 (27 October 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.