Wakilii

Nasari v Kabere & 4 Others (Miscellaneous Application 5 of 2024)

High Court · [2025] UGHC 73 · 2025 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review and setting aside of consent judgment arising from civil suit
Decision
Application dismissed; underlying civil suit remains pending and to be mentioned

Observed later treatment

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Holding

The High Court dismissed an application to review and set aside a consent judgment. The applicant alleged collusion, fraud, and error but failed to provide evidence meeting the heightened standard of proof required for fraud allegations. The court held that allegations of fraud and collusion must be specifically pleaded and strictly proved, ordinarily through a full suit allowing cross-examination, not by motion based on affidavits. The consent judgment between the co-defendant and plaintiffs did not stifle the applicant's right to a fair hearing as she remained a party to the underlying suit.

Outcome

Application dismissed; underlying civil suit remains pending and to be mentioned

Facts

The applicant and fifth respondent were defendants in a civil suit brought by four plaintiffs regarding fraudulent acquisition of letters of administration for the late F.K. Kabere's estate. The applicant alleged that she and the fifth respondent jointly instructed counsel to file a defence on 27 April 2023. The fifth respondent denied this, stating he filed his own defence on 18 May 2023. On 23 May 2023, the fifth respondent entered into a consent judgment with the four plaintiffs. The applicant contended that this consent was entered without her knowledge or participation, was tainted with collusion and illegality, and that the fifth respondent had no capacity to consent as he had not properly filed a defence. She sought to have the consent reviewed and set aside.

Issues

  1. Whether the consent judgment dated 23 May 2023 can be reviewed and set aside.
  2. What remedies are available to either party.

Orders

  • Application dismissed without an order as to costs.
  • HCT-05-CV-CS-0038-2023 to be mentioned on 27 April 2025.

Rules and key headnotes

Civil Procedure — Review of Judgment — Grounds for Review — Error Apparent on Face of Record
For an applicant to succeed on an application for review under Section 82 of the Civil Procedure Act and Order 46 Rule 1 of the Civil Procedure Rules, they must prove either: (a) discovery of new and important matter or evidence previously overlooked by excusable misfortune; (b) discovery of error or mistake apparent on the face of the record; or (c) any other sufficient reason analogous to the first two grounds.
Civil Procedure — Review of Judgment — Error Apparent on Face of Record — Definition and Scope
An error apparent on the face of the record must be self-evident and not one that requires a process of reasoning to detect. The error must be manifest, striking one on mere looking at the record, without requiring elaborate argument or long-drawn reasoning on points where there may conceivably be two opinions. Review of a judgment must not become an appeal in disguise.
Civil Procedure — Consent Judgments — Setting Aside — General Principle
A judgment based on consent of the parties cannot ordinarily contain error (consensus tollit errorem) nor injustice (volenti non fit injuria). However, a consent judgment may be set aside upon proper evidence that no consent was ever given, that parties were not consensus ad idem, or that consent was procured by misrepresentation, undue influence, coercion, or any other ground on which an agreement would be set aside.
Civil Procedure — Fraud and Collusion — Standard of Proof and Procedure
Questions relating to collusion and fraud must be specifically pleaded and strictly proved. The standard of proof is beyond mere balance of probabilities required in civil cases, though not beyond reasonable doubt as in criminal matters. Such allegations require a full and careful inquiry where witnesses can be cross-examined, which can only be appropriately done through an ordinary suit, not by motion based on affidavits.
Civil Procedure — Consent Judgments — Effect on Co-Defendants
Where a consent judgment is entered between some defendants and the plaintiffs in a matter, it does not stifle the right to a fair hearing of a co-defendant who was not party to the consent. Each defendant has an equal right to consent or contest claims brought against them, and the underlying suit remains pending against non-consenting defendants.

Legislation cited (11)

Cases cited (15)

  • Attorney General v Mark Kamoga (Supreme Court Civil Appeal No. 8 of 2004)
  • Re Nakivubo Chemists Ltd [1979] HCB 12
  • Independent Medico Legal Unit v Attorney General of Kenya (EACJ Application No. 2 of 2012)
  • Yusuf v Nokorach [1971] EA 104
  • Edison Kanyabwera v Pastori Tumwebaze (Supreme Court Civil Appeal No. 6 of 2004)
  • Webb vs Webb 3 Swantson 658
  • Hudderfield Banking Co. vs Henry Loster & Sons, Ltd. (1895) 2 Ch. 273
  • Besigye Kiiza v Museveni Yoweri Kaguta (Supreme Court Election Petition No. 1 of 2001)
  • Sebuliba v Cooperative Bank Limited [1987] HCB 130
  • M. Kibalya v Kibalya [1994-95] HCB 80
  • David Nalima v Rebecca Musoke (Civil Appeal No. 12 of 1985)
  • J Okello Okello v UNEB (Civil Appeal No. 12 of 1987)
  • Kampala Bottlers v Damanico Uganda Ltd (Civil Appeal No. 22 of 1992)
  • Fam International Limited v Mohamed Hamid El-Faith (Civil Appeal No. 16 of 1993)
  • Hon. Justice Prof. Dr. Kanyeihamba v Commissioner Land Registration (High Court Miscellaneous Cause No. 79 of 2011)

Full judgment

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

Nasari v Kabere & 4 Others (Miscellaneous Application 5 of 2024) [2025] UGHC 73 (27 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.