Wakilii

Makumbi v Katumba (Miscellaneous Application No. 316 of 2014)

High Court · [2014] UGHCLD 26 · 2014 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application arising from civil suit seeking account of property management under power of attorney
Decision
Application granted with orders for production of power of attorney instrument and furnishing of account within 2 weeks

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Holding

The court granted the application for an account. Where a plaint prays for an account and no preliminary question is established by the defendant, an order for proper accounts must immediately be made under Order 20 rule 1 of the Civil Procedure Rules. Mental infirmity occasioned by old age, as distinct from unsoundness of mind, does not require an inquisition under the Mental Treatment Act but may be established by medical evidence for purposes of suing through a Next Friend under Order 32 rule 15. No adverse interests between applicant and Next Friend were proven.

Outcome

Application granted with orders for production of power of attorney instrument and furnishing of account within 2 weeks

Facts

The applicant, a 97-year-old male, was the registered proprietor of numerous properties in and around Kampala. In 2003 he granted the respondent powers of attorney to manage his properties on his behalf. The applicant contended that the respondent had not provided him with an account of how she executed her responsibilities. The applicant instituted Civil Suit No. 24 of 2014 through his son and Next Friend, Patrick Makumbi, seeking an account of the respondent's management of his properties. Pending the hearing of the said suit, the applicant filed the present application seeking to secure the said account. The respondent opposed the application, arguing that the applicant had not been adjudged insane as required by Order 32 of the Civil Procedure Rules, and that the Next Friend had adverse interests to those of the applicant.

Issues

  1. Whether the court should grant an order for the respondent to furnish an account of property management under Order 20 rule 1 of the Civil Procedure Rules.
  2. Whether there existed a preliminary question to be tried that would preclude the immediate grant of an order for account.
  3. Whether the applicant's Next Friend was properly before the court under Order 32 of the Civil Procedure Rules.
  4. Whether the applicant had been adjudged to be of unsound mind or had been found by the court on inquiry to be incapable of protecting his interests by reason of mental infirmity.
  5. Whether the Next Friend had adverse interests to those of the applicant.

Orders

  • Application granted.
  • The respondent shall immediately produce before the Deputy Registrar, Land Division the Power of Attorney instrument executed in her favour by the applicant.
  • The respondent shall, within 2 weeks from the date hereof, furnish the applicant with an account of her management of the properties enlisted in the said Power of Attorney.
  • Costs of this application to the applicant.

Rules and key headnotes

Civil Procedure — Order for Account — Order 20 Rule 1 — Preliminary Questions
Where a plaint prays for an account and the plaintiff subsequently makes an application for such account, an order for proper accounts shall immediately be made by the court unless the defendant, having duly entered appearance, satisfies the court that there is a preliminary question to be tried.
Civil Procedure — Preliminary Questions — Definition and Scope
A preliminary question for purposes of Order 20 rule 1 of the Civil Procedure Rules is any question of law that has been pleaded by the defence or raised by way of affidavit that begs resolution before the relief sought by the plaintiff may be granted. Questions of fact, such as verification of properties subject to a power of attorney held by the respondent, do not constitute preliminary questions.
Civil Procedure — Next Friend — Mental Infirmity Distinguished from Unsoundness of Mind
Mental infirmity occasioned by old age is distinct from unsoundness of mind. Order 32 rule 15 of the Civil Procedure Rules applies to persons who, though not adjudged to be of unsound mind, are found by the court on inquiry by reason of mental infirmity to be incapable of protecting their interests when suing or being sued. Medical evidence is sufficient to establish such mental infirmity; there is no need for an inquiry as provided under the Mental Treatment Act.
Civil Procedure — Next Friend — Adverse Interests — Proof Required
To disqualify a Next Friend under Order 32 rule 4(1) of the Civil Procedure Rules on the ground of adverse interests, such adverse interests must be established by the objecting party. Past litigation between the applicant and the Next Friend does not per se prove adverse interests where the evidence shows they acted in agreement.

Legislation cited (7)

Cases cited (5)

  • National Bank of Kenya v Pipeplastic Samkolit (K) Ltd & Another (2002) 2 EA 503
  • Mohammed Yaqub vs. Nazir Ahmad & Others (1920) 58 Indian Cases 617
  • Mytheen Kunju Abdul Salam vs. Mohammed Kasim Ismail & Others (1992) AIR Ker 257
  • Thomas Aligawesa Kabunga Makumbi v Patrick Makumbi & Ethel Makumbi (Civil Suit No. 55 of 1997)
  • Josephine Katumba v Margaret Kyegombe (Civil Suit No. 332 of 2007)

Full judgment

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Makumbi v Katumba (Miscellaneous Application No. 316 of 2014) [2014] UGHCLD 26 (23 June 2014)
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.