Wakilii

Mugenyi and Another v Nasuna (Civil Appeal 40 of 2022)

High Court · [2025] UGCOMMC 52 · 2025 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Magistrate Grade 1 ruling setting aside judicial sale following execution of ex parte judgment in summary suit
Decision
The ruling of the trial Magistrate setting aside the judicial sale was upheld. The matter was remitted for trial with all necessary parties joined.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal and upheld the Magistrate's decision to set aside the judicial sale. The Court held that where an ex parte judgment has been set aside on grounds of violation of natural justice (the judgment debtor was never served), the execution proceedings that followed have no legal basis. The setting aside of an ex parte judgment automatically means the execution proceedings lacked legal foundation, and third parties who acquired interests in property sold pursuant to such irregular execution cannot claim absolute title even after payment of the purchase price.

Outcome

The ruling of the trial Magistrate setting aside the judicial sale was upheld. The matter was remitted for trial with all necessary parties joined.

Facts

On 9 April 2014, Song Xuessen T/A Hong Chang International Co. Ltd instituted a summary suit against Nasuna Jane for recovery of UGX 6,200,000 being an unpaid loan. On 11 June 2014, the Court entered ex parte judgment against Nasuna and ordered sale of her property at Bwebajja Zone LC 1 Kitende Parish Wakiso District. The property was sold to the Appellants. Nasuna was never served with summons or execution proceedings. On 21 August 2015 she applied to set aside the ex parte judgment on grounds of non-service. On 4 February 2016, the Court granted leave to appear and defend. On 21 December 2016, on preliminary objection by the plaintiff, the Court reversed the order setting aside the ex parte judgment on grounds that execution had already taken place. Nasuna sought revision. On 12 April 2019, Hon. Lady Justice H. Wolayo nullified the ruling reinstating the ex parte judgment, holding it was made with material irregularity. The Court confirmed that the ex parte judgment had been properly set aside because Nasuna had been denied natural justice. The file was remitted for trial with third-party notices issued to the Appellants on 11 March 2021. On 6 December 2021, the trial Magistrate set aside the judicial sale.

Issues

  1. Whether the trial Magistrate erred in law and fact when he set aside a judicial sale that had been made absolute.
  2. Whether the trial Magistrate erred in law and fact when he held that there was no judgment and decree on which to hold the Court sale thereby setting it aside.

Orders

  • Appeal dismissed.
  • Costs of the appeal to be in the cause.

Rules and key headnotes

Execution — Judicial Sale — Setting Aside — Effect of Setting Aside Ex Parte Judgment
Where an ex parte judgment has been set aside on grounds of violation of natural justice, the execution proceedings that followed have no legal basis. The setting aside of an ex parte judgment automatically means the execution proceedings had no legal foundation.
Natural Justice — Right to be Heard — Ex Parte Judgments
An ex parte judgment obtained where the judgment debtor was never served with summons condemns the party unheard contrary to the common law principle of natural justice that a party has a right to be heard. Such a judgment must be set aside to give the unheard party an opportunity to be heard.
Execution — Judicial Sale — Irregularities in Sale Procedure
No property can be declared to have been validly attached and sold in execution unless the order of attachment has been issued and other things prescribed by the rules in the relevant statutes have been complied with. If execution has been irregularly carried out, the Court is empowered to make an order of restoration.
Execution — Advertisement of Sale — Requirement for Fresh Notice on Adjournment
Under Order 22 rules 63 and 64 of the Civil Procedure Rules, a sale of immovable property can only take place at least 30 days from the date on which the public notice of sale was advertised. If the sale is adjourned for a longer period than a calendar week, a fresh public notice ought to be given unless the judgment debtor consents to waive such notice.
Execution — Judicial Sale — Effect of Absolute Sale
Although Section 49 of the Civil Procedure Act provides that where immovable property is sold in execution of a decree the sale becomes absolute on payment of the full purchase price, this is subject to exceptions. A judicial sale can be set aside where the Court is satisfied that there was an irregularity in the execution, particularly where the underlying judgment itself has been set aside for violation of natural justice.

Legislation cited (9)

Cases cited (13)

  • Ruzindana Senyonga v Mash Investments Ltd (Court of Appeal Civil Appeal No. 93 of 2014)
  • Lawrence Muwanga v Stephen Kyeyune (Supreme Court Civil Appeal No. 12 of 2001)
  • Kibuuka Nelson and Another v Yusuf Zziwa (Miscellaneous Application Nos. 72 and 225 of 2008)
  • James Kabateraine v Charles Oundo and Another (High Court Civil Suit No. 177 of 1994)
  • Kanoonya David v Kivumbi and Others (High Court Civil Suit No. 616 of 2003)
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another [1982] HCB 11
  • Philemon Wandera, Hoima S.S School and the Board of Governors Hoima Secondary School v Yesero Mugenyi & Reuman & Co. Ltd (Civil Appeal No. 61 of 2009)
  • Fr. Narsensio Begumisa and 3 Others v Eric Tibebaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Pandya v R [1957] EA 336
  • Allen Nsubuga Ntananga v Uganda Micro Finance Ltd and Others (High Court Miscellaneous Application No. 426 of 2006)
  • Maji Real Estates (U) Limited and Another v Aulogo Cooperative Savings and Credit Society Limited (Miscellaneous Civil Application No. 28 of 2017) [2017] UGHCCD 83
  • Bancroft and Another v City Council of Nairobi and Another [1971] 1 EA 151
  • Sam Kaggwa v Beatrice Nakityo [2001] 2 HCB 120

Full judgment

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Mugenyi and Another v Nasuna (Civil Appeal 40 of 2022) [2025] UGCommC 52 (28 February 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.