Wakilii

Mayinja v Bahwire (misc. Application. no.960 2024)

High Court · [2025] UGHCLD 172 · 2025 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal an interlocutory ruling overruling a preliminary objection in ongoing civil suit
Decision
Application dismissed; main suit to proceed to conclusion

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed an application for leave to appeal an interlocutory ruling that had overruled a preliminary objection based on alleged illegality. The Court held that the Makula principle regarding illegality overriding pleadings applies to illegal sanctions or orders imposed by courts, not to evidence-based allegations of illegality raised mid-trial. The proper course is to allow the trial to conclude, after which an appeal may lie from the final judgment.

Outcome

Application dismissed; main suit to proceed to conclusion

Facts

The Applicant raised a preliminary objection seeking to strike out the main suit on grounds that the Plaintiff's contract of purchase was premised on illegality, specifically that the Plaintiff acquired land from a non-Ugandan citizen. The objection was raised after trial bundles were filed, pre-trial conference concluded, witness statements filed, and five witnesses for the Plaintiff had testified. The Court overruled the preliminary objection in a ruling delivered on 4 April 2024. The Applicant then sought leave to appeal that interlocutory ruling, arguing the Court erred in failing to find the contract illegal and that illegality, once raised, overrides all questions of pleading.

Issues

  1. Whether the Applicant has demonstrated sufficient grounds to justify the grant of leave to appeal the Court's ruling delivered on 4 September 2024 overruling a preliminary objection.

Orders

  • Application for leave to appeal dismissed.
  • Costs awarded to the Respondent.

Rules and key headnotes

Civil Procedure — Leave to Appeal — Interlocutory Orders — Test for Grant of Leave
An applicant seeking leave to appeal an interlocutory order must demonstrate prima facie grounds of appeal which merit serious consideration and must show that the grounds raised are sufficiently arguable to warrant appellate review.
Civil Procedure — Preliminary Objections — Illegality — Makula Principle — Scope of Application
The principle in Makula International Ltd v Cardinal Nsubuga that illegality once brought to the attention of the court overrides all questions of pleading applies to illegal sanctions or orders imposed by courts in contravention of statute, not to evidence-based allegations of illegality raised mid-trial which require factual determination after hearing all parties.
Civil Procedure — Preliminary Objections — Timing — Evidence-Based Objections
A preliminary objection capable of disposing of a suit must raise pure points of law, not mixed questions of law and fact requiring evidence. Where an alleged illegality is evidence-based and emerges during cross-examination, the proper course is to allow the trial to conclude so that the court can make findings of fact before determining the legal consequences.

Legislation cited (3)

Cases cited (8)

  • Makula International Ltd v His Eminence Cardinal Nsubuga & Anor (Civil Appeal No. 4 of 1981)
  • Mukisa Biscuit Manufacturing Company vs. West End Distributors Ltd, (1969) EA 696
  • Livingstone Kayaga v Waligo (Civil Application No. 80 of 2012)
  • Sango Bay Estates Ltd & Others vs. Dresdner Bank A.G (1972) EA 17
  • Noah Bifaaki Serwanga v Atmos (U) Ltd & Others (HCMA No. 2041 of 2024)
  • Elmandry v Salam
  • Belvoir Finance Co. Ltd v Harold G. Cole Ltd (1969) 2 All E.R 904
  • Phillips v Copping (1935) 1 KB 15

Full judgment

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

Mayinja_v_Bahwire_(misc._Application._no.960_2024)_[2025]_UGHCLD_172_(18_August_2025)
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.