Wakilii

Mayanja v Kasikururu & Anor (Originating Summons No. 05 of 2008)

High Court · [2013] UGHCLD 43 · 2013 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for foreclosure and sale of mortgaged property by originating summons
Decision
Suit dismissed on preliminary objections

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court Land Division dismissed the plaintiff's application for foreclosure brought by originating summons on two preliminary objections. First, the action was time-barred under Limitation Act s.18(1) because the plaintiff's right to recover accrued in 1983 but he did not file suit until 2008, 25 years later, and political instability does not constitute a disability exempting the plaintiff from the limitation period. Second, originating summons was an improper procedure where the plaintiff alleged fraud and contested facts, which require determination by plaint with evidence rather than summary procedure.

Outcome

Suit dismissed on preliminary objections

Facts

In January 1983, the plaintiff allegedly advanced a loan of Shs.550,000 to the first defendant under a loan agreement, with the first defendant depositing her certificate of title for land at Munyonyo (Kyadondo Block 257 Plot 41) as security, creating an equitable mortgage. The loan was repayable within six months, failing which 6% interest would apply for the next six months. The plaintiff claimed the first defendant failed to repay despite repeated demands. In 2008, the plaintiff filed an originating summons seeking foreclosure and sale of the mortgaged property. The defendants denied the plaintiff's claims entirely—the first defendant stated she did not know the plaintiff and never obtained money from him or signed any agreement. The defendants raised preliminary objections on limitation and improper procedure. The plaintiff claimed political instability prevented him from filing suit earlier and alleged fraud by the defendants.

Issues

  1. Whether this suit is barred by limitation under the Limitation Act.
  2. Whether the suit is properly before this Court by way of Originating Summons.
  3. Whether the defendant/mortgagor, having failed to pay the plaintiff/mortgagee the sums advanced, should be foreclosed of her right to redeem the mortgaged property.
  4. Whether the plaintiff/mortgagee should be permitted to sell the mortgaged property upon foreclosure.

Orders

  • The two preliminary objections are upheld in favour of the two defendants.
  • The suit against the defendants in Originating Summons No. 5 of 2008 is dismissed.
  • Costs awarded to the defendants.

Rules and key headnotes

Limitation of Actions — Mortgage Debt — Computation of Limitation Period
Under Limitation Act s.18(1), no action shall be brought to recover any principal sum of money secured by a mortgage after the expiration of twelve years from the date when the right to receive the money accrued. The right to receive money under an equitable mortgage accrues from the date of the mortgagor's default on payment. Where the default occurred in July 1983 and the action was filed in 2008, 25 years later, the action is time-barred.
Limitation Act — Disability — Scope of Definition
Under the Limitation Act, the word 'disability' is strictly defined to mean infancy or unsoundness of mind only. Political instability does not constitute a disability exempting a party from the limitation period. The use of the phrase 'shall be deemed' in the interpretation section denotes mandatory compliance with this limited definition.
Originating Summons — Appropriate Procedure — Contested Facts and Fraud
Where a plaintiff alleges fraud and the facts upon which the claim is based are contested by the defendants, originating summons is not the appropriate procedure. Fraud must be specifically pleaded and proved by way of evidence in a plaint. Originating summons is designed for simple matters capable of determination without full trial, not for matters involving serious contested questions of fact.
Preliminary Objections — Determination from the Plaint
Where a suit is brought after the expiration of the period of limitation and this is apparent from the plaint (or originating summons), and no grounds of exemption are shown in the pleadings, the plaint must be rejected. The court is enjoined to look only at the plaint to decide whether the suit is time-barred in light of the facts alleged.

Legislation cited (14)

Cases cited (8)

  • William v Morgan [1906] 1 Ch 804
  • Uganda Railways Corporation v Ekwaru D.O and 5104 Others (Court of Appeal Civil Application No. 185 of 2007)
  • D.P. Sachania & Another v Hirji Pitamber [1958] E.A. 503
  • Departed Asians Property Custodian Board v Dr. J.M Masambu (Court of Appeal Civil Appeal No. 04 of 2004)
  • Sowali Kadim v Attorney General [1971] HCB
  • Fred Mungecha v Attorney General [1981] HCB 34
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Kulsumbhai Gulamhussein Jaffer Ramji & Another v Abdul Jaffer Mohmmed Rahim & Others [1957] E.A. 699

Full judgment

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Mayanja v Kasikururu & Anor (Originating Summons No. 05 of 2008) [2013] UGHCLD 43 (7 May 2013)
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.