Wakilii

Kizito and Another v Mutazahansi (Civil Miscellaneous Application 497 of 2021)

High Court · [2021] UGCOMMC 171 · 2021 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to vary or discharge a garnishee order arising from a consent judgment in an underlying civil suit
Decision
Garnishee order corrected to reflect accurate outstanding amount after accounting for partial payments already received

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court corrected a garnishee order obtained through misrepresentation where the judgment creditor failed to disclose partial payments already received and wrongly included interest not awarded in the consent judgment. The outstanding amount was reduced from UGX 45,325,356 to UGX 15,484,356 after accounting for the UGX 25,341,000 already received and excluding the improperly claimed interest component.

Outcome

Garnishee order corrected to reflect accurate outstanding amount after accounting for partial payments already received

Facts

The applicants engaged the respondent and other brokers to sell their land. Following a dispute over commission, a consent judgment was entered on 28 May 2019 entitling the respondent to UGX 50,000,000. The respondent subsequently obtained a garnishee order for UGX 54,500,000 (including claimed interest of UGX 4,500,000) on 11 March 2021, which was made absolute on 18 March 2021, resulting in partial recovery of UGX 9,174,644. The applicants contended that the respondent had already received UGX 20,029,500 (the respondent acknowledged UGX 25,341,000) before applying for the garnishee order but failed to disclose these payments to the court. The respondent argued the payments were for a separate concealed sum of UGX 93,750,000 not included in the consent judgment.

Issues

  1. Whether the garnishee order was procured by misinformation.
  2. Whether the garnishee order should be corrected.

Orders

  • The garnishee order is corrected to reflect that the amount outstanding and recoverable thereunder, after deduction of the UGX 9,174,644 previously recovered, is now UGX 15,484,356 and not UGX 45,325,356.
  • No order as to costs.

Rules and key headnotes

Consent Judgments — Binding Effect — Estoppel Against Contrary Assertions
A consent order or judgment operates as an estoppel against the parties thereto from asserting something contrary to the agreement, and payments made after execution of a consent judgment are deemed to have been paid towards the amount specified therein.
Consent Judgments — Setting Aside — Approbate and Reprobate
A party who has achieved partial enforcement of a consent decree may be prevented by the maxim of approbate and reprobate from seeking to set aside the consent judgment on grounds of fraud or misrepresentation, as a person cannot accept a benefit under an instrument without confirming to all its provisions.
Interest on Decrees — Consent Judgments — Requirement of Express Award
Interest does not accrue automatically on court decrees. In the case of a consent judgment, the parties must by their own contract fix the rate of interest to be paid, or else none is recoverable. Where a consent decree is silent with respect to payment of interest, the court is deemed not to have awarded such interest.
Garnishee Orders — Requirements for Issuance — Factual Prerequisites
A garnishee order under Order 23 rule 1 of the Civil Procedure Rules requires three factual elements: that the decree is not fully satisfied, that a specified amount is still owing, and that another person is indebted to the judgment debtor and is within the jurisdiction of the court.
Correction of Orders — Section 99 Civil Procedure Act — Misrepresentation of Facts
Under section 99 of the Civil Procedure Act, the court may correct mistakes arising from accidental slips including those arising from misrepresentation of facts made to the court, where the order does not correctly reflect the true facts existing at the time it was made.

Legislation cited (13)

Cases cited (12)

  • Agrafin Management Services Limited v Agricultural Finance Corporation and 5 Others [2012] eKLR
  • Brooke Bond Liebeg (T) Ltd v Mallya [1975] EA 266
  • Nshimye and Company Advocates v Microcare Insurance Limited and Insurance Regulatory Authority (High Court Miscellaneous Application No. 231 of 2014)
  • Mohamed Allibhai v WE Bukenya and Another (Supreme Court Civil Appeal No. 56 of 1996)
  • Babigumira John and Others v Hoima Council [2001-2005] HCB 116
  • Eleko Balume and Two Others v Goodman Agencies Limited and Two Others (High Court Miscellaneous Application No. 12 of 2012)
  • Livesey (formerly Jenkins) v Jenkins [1985] AC 424
  • Codrington v Codrington [1875] LR 7 HL 854
  • Express Newspapers plc v News (UK) Ltd [1990] 1 WLR 1320
  • PT Building Services Ltd v Rok Build Ltd [2008] EWHC 3434 (TCC)
  • Redworth Construction Ltd v Brookdale Healthcare Ltd [2006] EWHC 1994 (TCC)
  • Huddersfield Banking Company Ltd v Henry Lister and Sons Ltd (1895) 2 Ch D 273

Full judgment

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Kizito and Another v Mutazahansi (Civil Miscellaneous Application 497 of 2021) [2021] UGCommC 171 (6 August 2021)
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.