Nabirye v Basoga (Miscellaneous Application 133 of 2023)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Held that an application for review is not the proper procedure to challenge an exparte judgment on appeal where the respondent failed to participate in the appeal hearing. The correct procedure is to apply for reinstatement and rehearing under Order 43 rule 18 of the Civil Procedure Rules. Review applies where both parties were in court, while reinstatement applies where one party was absent. Application dismissed for adopting the wrong procedure.

Outcome

Application for review dismissed for wrong procedure; vacant possession order in favour of Basoga Patrick to be enforced forthwith

Facts

The applicant, Madina Nabirye, sought review of an exparte judgment on appeal delivered by Justice Tom Chemutai on 31 May 2022. The appeal arose from Civil Suit No. 18 of 2008 in which the trial magistrate found that the suit land belonged to Basoga Patrick but gave Nabirye the option to either refund the purchase price or surrender the land. Basoga Patrick appealed this contradictory order. Justice Chemutai allowed the appeal, declared the land to be Basoga Patrick's property, and set aside the refund order. Nabirye was absent when the appeal was heard. She applied for review alleging error apparent on the face of the record and claiming she was denied an opportunity to be heard. The respondent raised a preliminary objection that review was the wrong procedure.

Issues

1. Whether the application for review is the proper procedure to challenge an exparte judgment on appeal or whether the applicant should have applied for reinstatement and rehearing under Order 43 rule 18 CPR.
2. Whether there was an error apparent on the face of the record warranting review.
3. Whether the alleged execution of the judgment by depositing money with the cashier was valid.

Orders

• The second preliminary objection is sustained.
• The application for review is dismissed with costs.
• The order for vacant possession in favour of Basoga Patrick should be enforced forthwith.

Rules and key headnotes

Legislation cited (2)

• Civil Procedure Act s.82
• Civil Procedure Rules Order 43 rule 18

Cases cited (2)

• Ayob Suleiman v Ssalim Kabambalo (Supreme Court Civil Appeal No. 32 of 1995)
• Attorney General & ULC v James Mark Kamoga & Anor (Supreme Court Civil Appeal No. 8 of 2004)

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