Wakilii

Musinguzi Alwyn Carl Garuga v Muhebwa Benson (Civil Revision No. 5 of 2024)

High Court · [2025] UGCOMMC 479 · 2025 Revision Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Revision application from Chief Magistrate's Court judgment in small claims matter
Decision
Revision partly allowed; principal refund order upheld; costs and interest awards set aside

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that a late-filed affidavit in reply should not be struck out where the applicant failed to prove service of the application and where the affidavit serves an evidential rather than pleading function. On revision, the court found that the Chief Magistrate's Court had jurisdiction over the small claims matter as it did not involve a contract of service or for service under rule 5(2)(g) of the Small Claims Rules. However, the award of expenses and interest contravened rule 29 requiring parties to bear their own expenses. The revision was partly allowed, setting aside the costs and interest awards while upholding the principal refund order.

Outcome

Revision partly allowed; principal refund order upheld; costs and interest awards set aside

Facts

The applicant and respondent were negotiating a mortgage transaction for a loan of UGX 147,000,000. The respondent handed his certificate of title to the applicant as security and advanced UGX 4,000,000 to facilitate the loan (UGX 1,000,000 for valuation and UGX 3,000,000 for stamp duty). The transaction failed when the applicant discovered the security was encumbered. The respondent was not refunded the UGX 4,000,000. The respondent filed a small claim seeking recovery. The Chief Magistrate's Court found in the respondent's favour under the principle of money had and received, ordering refund of UGX 4,000,000 plus interest at 8% per annum, and awarded expenses of UGX 200,000 and filing fees of UGX 79,000. The applicant sought revision challenging jurisdiction and the awards.

Issues

  1. Whether the affidavit in reply is competently filed before the Honourable Court.
  2. Whether the application discloses grounds for revision.

Orders

  • The applicant refunds the respondent UGX 4,000,000 being monies for a loan processing activity which never materialized.
  • Each party bears its own costs.
  • The award of UGX 200,000 as expenses and UGX 79,000 as filing fees is set aside.
  • The award of interest at 8% per annum on the decretal sum is set aside.

Rules and key headnotes

Civil Procedure — Affidavits — Late Filing — Distinction Between Affidavits and Pleadings
An affidavit in reply, being evidence rather than a pleading in stricto sensu, should be filed and served within a reasonable time before the hearing date sufficient to allow the adverse party a fair opportunity to respond. Time constraints applied to written statements of defence may be misplaced when applied to affidavits. An affidavit in reply filed late should not be disregarded or struck off where the applicant has not proved service of the application and where no prejudice is demonstrated.
Civil Procedure — Revision — Grounds for Exercise of Revisionary Powers
The High Court may exercise revisionary powers under section 83 of the Civil Procedure Act where a Magistrate's Court has exercised jurisdiction not vested in it in law, failed to exercise jurisdiction so vested, or acted in exercise of jurisdiction illegally or with material irregularity or injustice. The court examines the record to satisfy itself as to the correctness, legality or propriety of any finding or order.
Civil Procedure — Small Claims — Jurisdiction — Contracts of Service and Contracts for Service
Rule 5(2)(g) of the Judicature (Small Claims Procedure) Rules 2011 excludes contracts of service and contracts for service from small claims jurisdiction. A contract of service involves work for wages and control by the employer. A contract for service involves an independent contractor who undertakes to produce a required result but is not under the order or control of the person for whom he executes the work. An intended mortgage transaction does not fall within the exclusion for contracts of service or for service.
Civil Procedure — Small Claims — Costs — Rule 29 Prohibition on Costs Awards
Rule 29 of the Judicature (Small Claims Procedure) Rules 2011 provides that a party to a claim shall bear his or her own expenses. An award of expenses for service of court process and filing fees in a small claims matter contravenes this rule and constitutes an illegal exercise of jurisdiction.
Evidence — Burden of Proof — Legal Burden and Evidential Burden — Shifting of Evidential Burden
The legal burden of proof lies on the plaintiff and does not shift. The evidential burden keeps shifting depending on the facts alleged by either side. Once the plaintiff adduces sufficient evidence to establish a prima facie case, the evidential burden shifts to the defendant to adduce evidence rebutting the assertion. Where a defendant denies documentary evidence but produces no evidence to rebut it, the court is entitled to rely on the documentary evidence.

Legislation cited (16)

Cases cited (18)

  • Sserunjoji Bernard v Sekyanzi Adrian (Miscellaneous Cause No. 28 of 2024)
  • Serefaco Consults Ltd v Euro Consult BV (Civil Application No. 16 of 2007)
  • Prof. Baryamureeba Venansius v St. Augustine International University Ltd and Another (Civil Suit No. 295 of 2018)
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another (1982) HCB 11
  • Edison Kanyabwera v Pastori Tumwebaze [2001-2005] HCB 98
  • Stop and See (U) Ltd v Tropical Africa Bank Ltd (HCMA No. 333 of 2010)
  • Senyonjo v Wakiso District Local Government Council and Another (Miscellaneous Cause No. 232 of 2023)
  • Dr. Lam Lagoro James v Muni University (HCMC No. 7 of 2016)
  • Munobwa Mohamed v Uganda Moslem Supreme Council (Civil Revision No. 1 of 2006)
  • Kisame Samson v Ali Kiyinkibi [2010] UGHC 21
  • Twine Amos v Tamusuza James (Civil Revision No. 11 of 2009)
  • Arimazan Zziwa v Angella Kintu (HCMA No. 7 of 1993)
  • Natukunda and Another v Kato (Review Cause No. 11 of 2019)
  • Okullu and Another v Ocepa (Labour Dispute Reference No. 9 of 2022)
  • Kensheka v Uganda Development Bank (HCCS No. 469 of 2011)
  • Auto Garage v Motokov [1971] 514
  • Isaac Aluoch Polo Aluochier v The Senate & 2 Ors Petition No. E014 of 2025
  • Raila Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae) (Presidential Election Petition 1 of 2017) [2017] KESC 42 (KLR)

Full judgment

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Musinguzi Alwyn Carl Garuga v Muhebwa Benson (Civil Revision No. 5 of 2024) [2025] UGCommC 479 (28 November 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.