Nestiya v Mutebi (Civil Appeal 37 of 2022)

Observed later treatment

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

The High Court allowed the appeal and set aside the trial magistrate's judgment as a nullity. The trial court erred by taking evidence from a new witness at the locus in quo who had not testified in court and by failing to allow parties who testified in court to clarify their evidence at the locus. This violated established procedure for locus visits. The matter was remitted for retrial before a different magistrate.

Outcome

Judgment of the Chief Magistrate's Court set aside as a nullity; matter remitted for retrial before another magistrate

Facts

The appellant purchased land in October 2013, constructed a house, and planted crops on it. In March 2019, the respondent allegedly trespassed by uprooting flowers, cutting trees, and creating a road on the suit land. The appellant filed suit for trespass in the Chief Magistrate's Court. The trial magistrate dismissed the suit after a locus in quo visit, finding that an access road measuring 2.5 metres existed on the suit land. The trial court's findings were largely based on testimony from Asiimwe Herbert, who sold the land to the appellant but only testified at the locus in quo without having given evidence in court during the main trial. The appellant appealed, arguing improper evaluation of evidence.

Issues

1. Whether the learned trial magistrate erred in law and fact when she only considered the evidence of the respondent in isolation of the appellant's evidence, thereby occasioning a miscarriage of justice.
2. Whether the trial magistrate properly followed the established procedure for conducting proceedings at the locus in quo.
3. Whether the trial magistrate erred by basing her judgment significantly on evidence from a witness who testified only at the locus in quo without having testified in court.

Orders

• Appeal allowed.
• Judgment, decree and orders of the trial magistrate set aside as a nullity.
• Matter remitted for retrial before another magistrate.
• Each party to bear its own costs for this appeal.

Rules and key headnotes

Cases cited (8)

• Father Nanensio Begumisa and three others v Eric Tiberaga (Supreme Court Criminal Appeal No. 17 of 2000)
• Peters v. Sunday Post [1958] E.A 424
• J.W. Ononge Vs. Okallang (1986) HCB 63
• Badiru Kabalega v Sepiriano Mugangu (High Court Civil Appeal No. 7 of 1987)
• Deo Matsanga Vs. Uganda 1998 KALR 57
• Mbusa Muyeye v Maliro Benezeri (High Court Civil Appeal No. 15 of 2017)
• The Registered Trustees of The Archdiocese Of Tororo v Wesonga Reuben Malaba & 5 Others (High Court Civil Appeal No. 96 of 2009)
• Kutambaki Augustine v Byaruhanga Paul (Court of Appeal Civil Appeal No. 65 of 2012)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Wancha and 8 Others v Onya (Miscellaneous Application 65 of 2023)

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