Wakilii

Kwehangana Nsabimana Mubaraka v Bishop Asili Memorial Nursery and Primary School and Others (Miscellaneous Application No.20 of 2023)

High Court · [2025] UGHC 732 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of order dismissing civil suit, brought under section 82 and 98 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules
Decision
Application for review dismissed with costs

Observed later treatment

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Holding

Held that an application for review fails where the alleged new evidence was already within the applicant's knowledge at the time of the order, and where the alleged error is not self-evident but requires elaborate argument. A letter on file requesting adjournment does not constitute new evidence for review purposes. Waiting for counsel who failed to appear does not amount to sufficient reason under the ejusdem generis rule.

Outcome

Application for review dismissed with costs

Facts

The applicant's civil suit for land encroachment was dismissed under section 17(2) of the Judicature Act on 21 March 2023 for non-appearance and failure to prosecute. The applicant had instructed two successive law firms who failed to comply with court directions to file witness statements and trial bundles. On 1 February 2023, the second law firm wrote requesting new timelines for filing documents. When the matter came up on 21 March 2023, neither the applicant nor his counsel appeared, and the suit was dismissed. The applicant then instructed a third law firm and brought this review application, alleging his former lawyers' negligence should not be visited upon him and that the court erred in not considering the letter of 1 February 2023.

Issues

  1. Whether there was discovery of new and important evidence justifying review under Order 46 of the Civil Procedure Rules.
  2. Whether there was a mistake or error apparent on the face of the record justifying review.
  3. Whether the applicant had sufficient reason for non-compliance with court directions.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Review of Judgments — Discovery of New Evidence — Evidence Within Applicant's Knowledge
Under Order 46 rule 1(b) of the Civil Procedure Rules, new and important evidence justifying review must be evidence which, after exercise of due diligence, was not within the knowledge of the applicant or could not be produced at the time the decree was passed or order made. A letter on the court file written by the applicant's own counsel with the applicant's instructions cannot constitute new evidence as it was within the applicant's knowledge at the material time.
Civil Procedure — Review of Judgments — Error Apparent on Face of Record — Self-Evident Errors
An error apparent on the face of the record under Order 46 rule 1 of the Civil Procedure Rules must be self-evident and not require elaborate argument to establish. It means an error which strikes one on mere looking at the record and does not require a long drawn process of reasoning. An error which has to be detected by process of reasoning cannot be said to be an error apparent on the face of the record. A review application cannot be allowed to become an appeal in disguise.
Civil Procedure — Review of Judgments — Sufficient Reason — Ejusdem Generis Rule
Under Order 46 rules 1 and 2 of the Civil Procedure Rules, the sufficient reason relied upon for review must be analogous (ejusdem generis) to the first two grounds of discovery of new and important evidence or mistake or error apparent on the face of the record. An applicant's reliance on waiting for counsel who failed to appear does not meet the test of sufficient reason under this rule.

Legislation cited (8)

Cases cited (6)

  • Gideon Mosa Ochwati v Kenya Oil Co Ltd [2017] KLR
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Criminal Appeal No. 8 of 1998)
  • Richard Lumu Njalebuza v The Society of Catholic Medical Missionaries Ltd (Miscellaneous Application No. 1944 of 2018)
  • Faridah Omar v Sheila Agonzibwa (Miscellaneous Application No. 1034 of 2020)
  • Farminputs Care Centre Ltd v Klein Karoo Seeds Marketing Pty Ltd (Miscellaneous Application No. 86 of 2021)
  • Ojijo Pascal v Eseza Catherine Byakika (Miscellaneous Application No. 1028 of 2020)

Full judgment

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Kwehangana Nsabimana Mubaraka v Bishop Asili Memorial Nursery and Primary School and Others (Miscellaneous Application No.20 of 2023) [2025] UGHC 732
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.