Wakilii

Muhindo Isaleri v Musoki Mukonjo and Others (HCT-01-LD-CA-0028-2023; HCT-01-LD-MA-0017-2026)

High Court · [2026] UGHC 702 · 2026 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex-parte judgment in a civil appeal from the Chief Magistrate's Court and for rehearing
Decision
Ex-parte appellate judgment set aside; appeal to be reheard on merits; execution proceedings stayed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that an application under Order 43 rule 18 to set aside an ex-parte appellate judgment is competent and the court is not functus officio where a statutory exception permits rehearing. The court found that the applicant was not properly served with notice of appeal and that the appeal had proceeded against a deceased co-respondent without substitution, violating natural justice and the right to a fair hearing. The ex-parte judgment was set aside and the appeal ordered reheard on its merits.

Outcome

Ex-parte appellate judgment set aside; appeal to be reheard on merits; execution proceedings stayed.

Facts

Muhindo Isaleri and Kyakimwa Alice jointly sued as plaintiffs in Land Case No. 045 of 2008 in Bundibugyo Chief Magistrate's Court and obtained judgment in their favour on 26 April 2025. The defendants appealed to the High Court vide Civil Appeal No. 0028 of 2023. During the pendency of the appeal, Kyakimwa Alice died on 14 June 2023. The appeal proceeded ex-parte and judgment was delivered in favour of the appellants without Muhindo Isaleri being present. The applicant only learned of the appellate proceedings in December 2025 when he received taxation hearing notices. He deposed that he was never served with the notice and memorandum of appeal. The respondents maintained that service had been effected through a licensed process server, Nyakahuma Andrew, and that affidavits of service were on the court record. The respondents commenced execution and taxation proceedings following their appellate success.

Issues

  1. Whether the application is legally competent before this Court, or whether this Court is functus officio.
  2. Whether the Applicant has the requisite locus standi to raise matters concerning the estate or death of the late Kyakimwa Alice.
  3. Whether the Applicant establishes sufficient cause to warrant the setting aside of the judgment in Civil Appeal No. 28 of 2023 and an order for a rehearing.

Orders

  • The ex-parte Judgment and Decree delivered in Civil Appeal No. 0028 of 2023 are hereby set aside.
  • An order is hereby issued for the Rehearing of Civil Appeal No. 0028 of 2023 on its merits.
  • All execution proceedings, including the taxation of bills of costs arising out of the ex-parte judgment in Civil Appeal No. 0028 of 2023, are hereby stayed.
  • The costs of this application are awarded to the Applicant, in any event.

Rules and key headnotes

Civil Procedure — Setting Aside Ex-Parte Judgments — Functus Officio Doctrine — Statutory Exceptions
Where a specific statutory provision empowers a court to set aside its own ex-parte orders or judgments upon proof of non-service or sufficient cause, the doctrine of functus officio cannot be invoked to defeat that explicit statutory jurisdiction.
Civil Procedure — Appeals — Ex-Parte Character of Appellate Proceedings
An appeal is heard ex-parte when it proceeds and is determined in the absence of one of the parties who has not been given a proper opportunity to be heard. The determination of the appeal on its merits after re-evaluating evidence does not strip the proceedings of their ex-parte character.
Civil Procedure — Death of Party — Requirement of Substitution in Appellate Proceedings
The death of a party to an appeal suspends the capacity of the court to proceed against that party until a proper substitution is made under Order 24 of the Civil Procedure Rules. Proceeding to hear an appeal against a deceased person without substituting them renders the resulting judgment a nullity as far as the deceased person is concerned.
Civil Procedure — Locus Standi — Standing to Challenge Judgment Affected by Co-Party's Death
A party to an appeal has standing in their own right to challenge an ex-parte judgment and to bring to the court's attention the death of a co-party during the pendency of proceedings, where the failure to substitute the deceased co-party fundamentally affects the integrity of the appellate outcome, without needing to be the legal representative of the deceased's estate.
Civil Procedure — Service of Process — Right to Fair Hearing — Ex Debito Justitiae
Where a party shows that they were not served with notice of appeal, they are entitled to have the ex-parte judgment set aside ex debito justitiae, because the court lacks the moral and legal authority to condemn a party unheard. The right to a fair hearing under Article 28 of the Constitution cannot be defeated by a failure to serve process.
Evidence — Proof of Service — Burden of Proof — Credibility of Process Server
Where a party denies service under oath, the evidentiary burden shifts to the party asserting service to produce cogent and watertight proof. Where a process server deposes to having served a deceased person, no credibility can be attached to his assertions regarding service upon other parties in the same transaction.

Legislation cited (9)

Cases cited (4)

  • Captain Phillip Ongom v Catherine Nyero Iwota (Supreme Court Civil Appeal No. 14 of 2001)
  • Mpuerise Lawrensio -v- Nyirabaganda Consolanta & Bizimana Clao (Kabale)
  • Sulaiman Kamulegeya v Nansamba Robinah & Another (Civil Appeal No. 227 of 2013)
  • Mpwerise Lawrensio v Nyirabaganda Consolata & Bizimana Clao (High Court Civil Appeal No. 0055 of 2018)

Full judgment

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

Muhindo Isaleri v Musoki Mukonjo and Others (HCT-01-LD-CA-0028-2023; HCT-01-LD-MA-0017-2026) [2026] UGHC 702 (30 June 2026)
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.