Wakilii

Kisawuzi v Walusimbi (Miscellaneous Application No. 276 of 2012)

High Court · [2012] UGCOMMC 175 · 2012 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application arising from civil appeal from Chief Magistrate's Court
Decision
Application granted; witness summons ordered

Observed later treatment

Cited — treatment unverified cited in 3 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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.

No adverse treatment recorded Cited 3 times with no adverse treatment recorded; not yet tested on the merits. Citations rising — 3 citing cases on record, 3 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court granted the application to adduce fresh evidence on appeal under Civil Procedure Rules Order 43 Rule 22. The court held that the witness Geoffrey Mwase could not have been procured with reasonable diligence at trial as he had escaped from police custody. The evidence would probably have an important bearing on the appeal by addressing whether the transaction was a sale or mortgage, a matter on which oral testimony had been excluded by the trial court on grounds of contradicting a written agreement.

Outcome

Application granted; witness summons ordered

Facts

The applicant was the registered owner of motor vehicle UAL 688 F. One Mwase Geoffrey expressed interest in purchasing the vehicle and the applicant allowed him to drive it to town. Mwase Geoffrey disappeared with the vehicle, which was subsequently found with the respondent. The applicant reported the matter to police and Mwase Geoffrey was arrested on 9 May 2009 but escaped from custody. The applicant filed civil suit no. 666 of 2009 for recovery of the vehicle from the respondent, who claimed to have purchased it. Mwase Geoffrey could not be procured as a witness during the trial. Judgment was delivered on 26 August 2010 in favour of the respondent. The applicant appealed. Mwase Geoffrey was later rearrested, charged with theft of the motor vehicle, convicted on 15 December 2011, and sentenced to one year imprisonment. The applicant then sought leave to adduce Mwase Geoffrey's oral evidence on appeal to address whether the transaction with the respondent was a sale or mortgage.

Issues

  1. Whether the applicant should be granted leave to adduce additional evidence on appeal
  2. Whether the evidence could not have been obtained with reasonable diligence for use at trial
  3. Whether the additional evidence would probably have an important influence on the result of the case
  4. Whether the additional evidence is apparently credible

Orders

  • Application to adduce fresh evidence on appeal granted.
  • Witness summons to issue for Geoffrey Mwase.
  • Witness to be produced in court on a date to be fixed by the parties.
  • Costs of this application to abide the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Additional Evidence on Appeal — Conditions for Admission
Under Civil Procedure Rules Order 43 Rule 22, parties are not entitled to produce additional evidence on appeal except where the trial court refused to admit evidence which ought to have been admitted, or where the appellate court requires any document or witness to enable it to pronounce judgment. The appellate court has discretionary power to allow such evidence.
Evidence — Fresh Evidence on Appeal — Threefold Test
To justify reception of fresh evidence on appeal, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case though it need not be decisive; third, the evidence must be apparently credible though it need not be incontrovertible.
Evidence — Additional Evidence — Unavailability of Witness at Trial
Where a witness was a fugitive from justice and had escaped from police custody during the trial of a civil suit, his evidence could not have been procured with reasonable diligence at trial and this satisfies the first condition for admission of fresh evidence on appeal.
Evidence — Parol Evidence Rule — Exclusion of Oral Evidence
Where oral testimony was excluded by the trial court on the basis that it would contradict a written sale agreement under Evidence Act section 92, the exclusion of such evidence may constitute a ground for admission of fresh evidence on appeal, particularly where the evidence is necessary to establish whether a transaction was a sale or mortgage.
Civil Procedure — Fresh Evidence — Evidence Excluded at Trial
The exclusion by the trial court of evidence that ought to have been admitted falls within the exception for admissibility of fresh evidence on appeal under Civil Procedure Rules Order 43 Rule 22(1)(a).

Legislation cited (6)

Cases cited (6)

  • Karmali Tarmohamed and Another v T.H. Lakhani and Co. [1958] 1 EA 567
  • Namisango v Galiwango and Another [1986] HCB 37
  • Ladd v Marshall [1954] 1 WLR 1489
  • GM Combined (Uganda) Limited v A.K. Detergents Ltd and 4 Others (Supreme Court Civil Appeal No. 7 of 1998)
  • Hon. Anthony Kanyike v The Electoral Commission and Others (Civil Application No. 13 of 2006)
  • Corbett v Corbett [1953] 2 All ER 69

Cases citing this judgment (3)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

↓ Download PDF

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

Kisawuzi v Walusimbi (Miscellaneous Application No. 276 of 2012) [2012] UGCommC 175 (17 August 2012)
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.