Wakilii

Kyezira v Best Bargaining Financial Services Limited & Another (Miscellaneous Application 1304 of 2022)

High Court · [2024] UGCOMMC 269 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for release of property from attachment on grounds of third party rights, arising from execution of consent decree in mediation cause
Decision
Warrant of attachment set aside and property released from attachment; 1st respondent may institute fresh suit if interested in establishing rights to the property

Observed later treatment

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Holding

The court held that the process of attachment was tainted with illegalities. The Registrar issued a warrant of attachment for property that was not registered in the judgment debtor's name at the time of attachment, and the certificate of title was never deposited in court as required by Section 48 of the Civil Procedure Act and Order 22 Rule 51 of the Civil Procedure Rules. The court set aside the warrant of attachment and released the property from execution, applying the principle that once an illegality is brought to the court's attention it cannot be sanctioned.

Outcome

Warrant of attachment set aside and property released from attachment; 1st respondent may institute fresh suit if interested in establishing rights to the property

Facts

The applicant and 2nd respondent were formerly married and divorced. The applicant contends they entered a memorandum of understanding to jointly purchase property comprised in Busiro Block 424 Plot 1571 for their children. Without the applicant's knowledge, the 2nd respondent mortgaged this property to the 1st respondent for a loan, though the property was registered in the names of Tumwesigye Innocent, not the 2nd respondent. The 2nd respondent defaulted and entered a consent order in Mediation Cause No. 779 of 2018 for repayment. When the 2nd respondent failed to honour the consent, the 1st respondent applied for execution. The Registrar issued a warrant of attachment on 6 September 2022. Three days later, on 9 September 2022, the 2nd respondent was registered as proprietor of the property. The applicant learned of the execution through a public auction notice and filed this application seeking release of the property on grounds of third party rights and that his children resided there.

Issues

  1. Whether the process leading to the issuance of the warrant and attachment was illegal.
  2. Whether the suit property should be released from execution on grounds of third party rights.

Orders

  • Application granted.
  • The order by which the suit property was attached in execution of the consent entered into in Mediation Cause No. 779 of 2018 is irregular and illegal and is hereby set aside.
  • The suit property comprised in Busiro Block 424 Plot 1571, land at Mpala Wakiso District measuring approximately 0.0460 hectares is released from attachment.
  • Costs of the application awarded to the applicant.

Rules and key headnotes

Attachment and Execution — Duplicate Certificate of Title — Mandatory Requirement Before Attachment of Immovable Property
Before a court may proceed with the sale of immovable property under a decree of execution, the duplicate certificate of title must be lodged with the court as required by Section 48 of the Civil Procedure Act and Order 22 Rule 51 of the Civil Procedure Rules. Failure to comply with this requirement renders the warrant of attachment irregular and illegal.
Attachment and Execution — Property Not in Judgment Debtor's Name at Time of Attachment
A warrant of attachment is invalid and irregular where it is issued and executed against property that does not belong to the judgment debtor at the time of attachment. The Registrar has a duty to ascertain that property set out in the schedule to the warrant of attachment is registered in the name of the judgment debtor and nobody else before executing the warrant.
Illegality — Court Cannot Sanction Once Brought to Attention
It is a well-established principle of law that once an illegality is brought to the attention of the court, the court cannot sanction it. Where the process of attachment is tainted with illegalities, the court must set aside the order of attachment notwithstanding any other considerations.

Legislation cited (8)

Cases cited (11)

  • Senteza Erieza & Another v Twesigye Eliyasi & Another (High Court Miscellaneous Application No. 57 of 2020)
  • Chotabhai M. Patel v Chaprabhi [1958] EA 743
  • David Muhenda & 3 Others v Margaret Kamuje (Supreme Court Civil Appeal No. 9 of 1999)
  • Ndawula Ronald v Sudafine Limited (Miscellaneous Application No. 1701 of 2014)
  • Makulu International v His Eminence Cardinal Nsubuga
  • Pakira Harriet and another v Iyatoto Child Ministries
  • Luis Okello v Gonga Ronald (Civil Appeal No. 119 of 2019)
  • Uganda Broadcasting Corporation v Simba K Limited
  • Uganda Broadcasting Corporation v Simba (K) Limited & 2 Others (Civil Application No. 12 of 2014)
  • Ndaula Ronald v Ugafin Limited (Miscellaneous Application No. 1710 of 2014)
  • Makula International v Cardinal Wamalo Nsubuga

Full judgment

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

Kyezira v Best Bargaining Financial Services Limited & Another (Miscellaneous Application 1304 of 2022) [2024] UGCommC 269 (19 February 2024)
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.