Wakilii

Kyeyune and Others v Nakayenga and Others (Family Misc Application 286 of 2023)

High Court · [2023] UGHCFD 102 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order and reinstate underlying civil suit arising from Family Misc Application No. 778 of 2022 and Civil Suit No. 178 of 2017
Decision
Application dismissed on preliminary grounds with costs to respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application on three preliminary grounds. First, the application was res judicata, being identical in parties, subject matter and relief sought to Miscellaneous Application No. 778 of 2022 which had been conclusively determined. Second, the affidavit in support was defective as the first applicant swore on behalf of the other applicants without filing written authority as required by Order 1 Rule 12 of the Civil Procedure Rules. Third, the application was misconceived as it sought reinstatement under Order 9 Rule 27 when the suit was dismissed for want of prosecution, not non-appearance.

Outcome

Application dismissed on preliminary grounds with costs to respondents

Facts

The applicants filed Civil Suit No. 178 of 2017 seeking to annul a marriage and revoke letters of administration. The suit was dismissed. The applicants then filed Miscellaneous Application No. 778 of 2022 seeking to set aside the dismissal and reinstate the suit, citing difficulties caused by COVID-19 and the murder of their co-counsel. That application was heard and dismissed on 23 February 2023. The applicants filed the present application (Misc App No. 286 of 2023) seeking identical orders: to set aside the dismissal order and reinstate Civil Suit No. 178 of 2017. The first applicant swore the supporting affidavit on behalf of all five applicants, stating he had been authorized by the others but without filing written authority. The respondents objected on grounds of res judicata, defective affidavit, and that the application was misconceived.

Issues

  1. Whether the application is res judicata having regard to the earlier Miscellaneous Application No. 778 of 2022 which was heard and dismissed.
  2. Whether the affidavit in support is defective for want of written authority from the 2nd to 5th applicants as required by Order 1 Rule 12 of the Civil Procedure Rules.
  3. Whether the application is misconceived in law given that the underlying suit was dismissed for want of prosecution rather than non-appearance.

Orders

  • The preliminary objections succeed.
  • This application is dismissed.
  • Costs awarded to the 1st through 7th Respondents.

Rules and key headnotes

Civil Procedure — Res Judicata — Application of Section 7 of the Civil Procedure Act — Requirements
For the doctrine of res judicata to apply under Section 7 of the Civil Procedure Act, three minimum conditions must be satisfied: (a) there must be a former suit or issue decided by a competent court; (b) the matter in dispute in the former suit between parties must also be directly or substantially in dispute in the current suit; and (c) the parties in the former suit should be the same parties or parties under whom they claim, litigating under the same title.
Civil Procedure — Res Judicata — Application Seeking Identical Relief — Same Parties and Subject Matter
Where an applicant brings an application seeking the same orders as in a previous application heard and determined inter partes, involving the same parties and same subject matter, the second application is barred by res judicata and must be dismissed.
Civil Procedure — Affidavits — Written Authority to Swear on Behalf of Others — Order 1 Rule 12 CPR
Where a deponent swears an affidavit on his own behalf and on behalf of other parties who are not represented in a representative capacity, written authority signed by those parties must be filed with the case as required by Order 1 Rule 12(2) of the Civil Procedure Rules. Failure to comply with this mandatory requirement renders the affidavit defective for want of authority.
Civil Procedure — Dismissal for Want of Prosecution — Remedy — Reinstatement vs Appeal
Where a suit is dismissed for want of prosecution rather than for non-appearance of parties, the remedy is not to apply for reinstatement under Order 9 Rule 27 of the Civil Procedure Rules (which applies to dismissal for non-appearance), but to appeal against the order of dismissal or file a fresh suit subject to limitation.

Legislation cited (9)

Cases cited (5)

  • Mansukhlala Ramji Karia & Crane Finance Co. Ltd v Attorney General and Others (Supreme Court Civil Appeal No. 20 of 2002)
  • John Kafeero Sentongo v Shell (U) Ltd & Uganda Petroleum Co. Ltd (Court of Appeal Civil Application No. 50 of 2003)
  • Lena Nakalema Binaisa and Others v Mucunguzi Myers (High Court Misc Application No. 469 of 2013)
  • Jim Muhwezi and Others v Attorney General (Constitutional Petition No. 4 of 1998)
  • Gold Beverages Uganda Limited v Muhangura Kenneth and Another (High Court Misc Application No. 674 of 2019)

Full judgment

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

Kyeyune and Others v Nakayenga and Others (Family Misc Application 286 of 2023) [2023] UGHCFD 102 (7 November 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.