Wakilii

Visare Uganda... (Civil Appeal No. 1425 of 2023; Civil Appeal No. 294 of 2024; Civil Application No. 0420 of 2023; Civil Application No. 409 of 2024; Civil Application No. 431 of 2024; Civil Application No. 531 of 2023) 2025 UGCA 359 (2025-

Court of Appeal · [2025] UGCA 359 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated civil appeals and applications arising from High Court (Commercial Division) decisions refusing to set aside a consent judgment and dismissing a challenge to a sale by execution, together with applications for extension of time, leave to appeal, and to strike out appeals.
Decision
Consent judgment interest reduced from 48% to 6% per annum with overpaid interest to be refunded after audit; the separate execution-sale appeal (Civil Appeal No. 294 of 2024) struck out for failure to take essential steps within time.

Observed later treatment

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Holding

The Court of Appeal, hearing consolidated appeals and applications, granted the appellant extension of time and leave to appeal against dismissal of its application to set aside a consent judgment, holding the mistake of previous counsel should not be visited on the client. On the merits, the Court held that a 4% per month (48% per annum) penal interest rate imposed by a non-financial institution in a consent judgment was exorbitant, unconscionable and contrary to court policy, and reduced it to 6% per annum under section 26 of the Civil Procedure Act. However, the separate appeal challenging the execution sale was struck out because the appellant failed to serve the notice of appeal and record of appeal within the prescribed time, amounting to dilatory conduct.

Outcome

Consent judgment interest reduced from 48% to 6% per annum with overpaid interest to be refunded after audit; the separate execution-sale appeal (Civil Appeal No. 294 of 2024) struck out for failure to take essential steps within time.

Facts

Visare Uganda Limited was registered proprietor of leasehold property on Lugogo Road, Kampala. In 2017 it obtained a US$ 2,500,000 loan from KCB Bank (U) Limited to construct residential apartments, secured on the property. Visare defaulted and the Bank commenced foreclosure. To settle the debt, Visare agreed to sell 12 condominium units to Grant Thornton Management Limited, with payments made directly to KCB Bank. A tripartite agreement followed, and on 31 August 2020 a consent judgment was entered in Civil Suit No. 898 of 2019. The consent judgment provided that, on breach, Grant Thornton could sell the suit property to recover amounts paid together with interest at 4% per month. Grant Thornton commenced execution, obtaining a warrant of attachment; the property was sold at public auction to Yi Hai Property Servicing Company. Visare applied to set aside the consent judgment on grounds of mistake and unconscionable interest, and separately challenged the execution sale. Both applications were dismissed by the High Court, prompting these consolidated appeals and applications.

Issues

  1. Whether the applicant should be granted extension of time to apply for leave to appeal against the dismissal of an application to set aside a consent judgment.
  2. Whether the applicant should be granted leave to appeal on the ground that the intended appeal raises questions of public or general importance.
  3. Whether the appeal challenging the refusal to set aside the consent judgment should be struck out for failure to serve the notice of appeal and take essential steps.
  4. Whether the court should review and set aside an interest rate of 4% per month (48% per annum) in a consent judgment as exorbitant, unconscionable and contrary to court policy.
  5. Whether the appeal challenging the sale by execution should be struck out for failure to take essential steps within the prescribed time under the Court of Appeal Rules.

Orders

  • Civil Application No. 0420 of 2023 for leave to appeal is allowed; each party to bear its costs.
  • Civil Application No. 0531 of 2023 for extension of time is allowed; each party to bear its costs.
  • Civil Application No. 431 of 2024 to strike out the appeal is dismissed with costs to the respondent.
  • Civil Appeal No. 1425 of 2023 is allowed with costs against the 2nd Respondent.
  • The interest rate charged by Grant Thornton Management Limited is reduced to 6% per annum; the appellant is entitled to the overpaid interest, to be ascertained by an independent auditor or referee appointed by the Registrar, carrying interest at the court rate of 6% from the date of overpayment until payment in full.
  • Civil Application No. 409 of 2024 by Yi Hai Property Servicing Company to strike out the appeal is allowed with costs to the applicant.
  • Civil Application No. 419 of 2024 by Grant Thornton Management Limited and Festus Katerega to strike out the appeal is allowed with costs to the applicants.
  • Civil Appeal No. 294 of 2024 is struck out with costs.

Rules and key headnotes

Extension of Time — Mistake of Counsel — Not Visited on Client
A mistake of counsel, such as filing a notice of appeal against a refusal of leave instead of applying to the Court of Appeal for leave under Rule 40, should not be visited on the client, and constitutes sufficient cause for extension of time to apply for leave to appeal.
Leave to Appeal — Questions of Public or General Importance — Threshold
An applicant for leave to appeal need only show a reasonable chance of success or arguable grounds of appeal raising matters of public or general importance, without the court delving into the merits of the intended appeal, and provided the applicant is not guilty of dilatory conduct.
Consent Judgments — Grounds for Setting Aside — Mistake and Court Policy
A consent judgment cannot be set aside merely because a party has a change of heart; it may only be set aside for fraud, collusion, mistake, misapprehension of material facts, or an agreement contrary to the policy of the court. Where the terms were explained to and understood by all parties, the inclusion of an interest rate is not a mistake.
Interest — Unconscionable and Exorbitant Rates — Court's Power to Reduce
Under section 26 of the Civil Procedure Act, a court may decline to enforce a harsh and unconscionable interest rate even where voluntarily agreed. A penal interest of 4% per month (48% per annum) charged by a non-financial institution on a foreign currency obligation is exorbitant, unconscionable and contrary to court policy, and may be reduced by the court to a fair and reasonable rate; here reduced to 6% per annum.
Striking Out Appeal — Failure to Take Essential Step — Service Within Prescribed Time
Under Rule 82 of the Court of Appeal Rules, failure to serve the notice of appeal, to apply for a copy of proceedings within thirty days, or to serve the memorandum and record of appeal within the prescribed time constitutes failure to take an essential step and is a mandatory, not merely procedural, requirement. Article 126(2)(e) cannot cure an unexplained failure to comply with statutory time limits, and dilatory conduct warrants striking out the appeal.
Electronic Filing (ECCMIS) — Integrity and Honest Use of the System
Appeals may be validly filed through ECCMIS, but the court requires accurate and honest use of the system; where a certificate of correctness on the electronic record is dated after the alleged filing date and is absent from the hard copy, the discrepancy casts doubt on the claimed filing date.

Legislation cited (20)

Cases cited (58)

  • Musa Afuterk v Commissioner Land Registration and 2 Others (Civil Reference No. 258 of 2010)
  • Ali Muwanga Kibiige v Yako Bank Limited and Another (Civil Application No. 148 of 2024)
  • David Muhenda v Humphrey Mirembe (Supreme Court Civil Appeal No. 05 of 2012)
  • Kananura Andrew Kansiime v Richard Henry Kaijuka (Supreme Court Civil Appeal Reference No. 15 of 2016)
  • F. L. Kaderbhai and another u Shamsherali M. Zaver and others, [2008] UGSC (2017 October 2008)
  • Zam Nalumansi v Suleman Lule (Civil Application No. 02 of 1999)
  • Sango Bay Estates Limited u Dresdner Bank, [1971] 1 EA 307
  • Sango Bay Estates Ltd & Ors u Dresdner Bank A.G, (1972) EA 77
  • Degeya Trading Stores (U) Limited v Uganda Revenue Authority (Civil Application No. 16 of 1996)
  • Apollo Bright Buyakye and Others v Prof. Sam Tulga Muhika (Civil Application No. 239 of 2023)
  • Katungulu John Matovu & 2 Others v Godfrey Rwabugonda (Supreme Court Civil Appeal No. 09 of 2021)
  • Steven Kosozi and 2 Others v People's Transport Service (Civil Appeal No. 27 of 1993)
  • Livingstone Kagaya Kizito v Charles Wollgo (Civil Appeal No. 80 of 2012)
  • Visare Uganda Limited u KCB Bank Limited and another, Misc. Application No. 0531 of 2023
  • Barclays Bank of Uganda Ltd v Eddy Rodrigues (Civil Appeal No. 5 of 1987)
  • Sgt. Oumo Joshua & Attorney General v Paul Wangoto Mugoga & Another (Supreme Court Civil Appeal No. 17 of 2022)
  • Kiboro u Posts & Telecommunication Corporation, (1974) E.A 155
  • James Bahinguza & Anor v Attorney General (Civil Application No. 269 of 2013)
  • Genegri Plantation Limited v SWATT Security Limited (Civil Application No. 193 of 2024)
  • Bakaluba Peter Mukasa & Another v Nalugo Mary Margaret Sekizigitru (Court of Appeal Election Petition Appeal No. 24 of 2011)
  • Andrew Maviri v Jomanji Property Construction Ltd (Court of Appeal Civil Appeal No. 274 of 2014)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Eridadi Tito Nsubuga and Another v Attorney General (Court of Appeal Civil Application No. 58 of 1998)
  • Francis Kigaga v Josephine Segajja and Wilbrod Birabuta (Civil Appeal No. 76 of 2010)
  • Greenland Bank Limited (In Liquidation) v Rwenzori Properties Limited (Civil Appeal No. 75 of 2006)
  • Nipun Norattam Bhatia v Crane Bank (Civil Appeal No. 75 of 2006)
  • Makula International Limited u His Eminence Cardinal Nsubuga and another, [1982] HCB 11
  • Hirani u Kassam, (1952) EA 131
  • Attorney General and another u Kamoga, [2008] 2 EA 31
  • Mohamed Allibhai v W.E. Bukenya (Civil Appeal No. 56 of 1996)
  • Basiima Kabonesa v Attorney General and Coffee Marketing Board (Supreme Court Civil Appeal No. 16 of 2021)
  • Friedhelm Erwin Jost and Another v Roko Construction Ltd and 2 Others (Misc. Application No. 89 of 2021)
  • J u B [2016] 1 WLR 3319
  • JAS Ventures International Ltd v Afithaire (Civil Suit No. 676 of 2021)
  • Dhiman u Singh, Civil Appeal E380 of 2023, [2025] KECA 1264 (KLR)
  • Attorney General v Major (Rtd) Anthony Jallout Okullo (Civil Appeal No. 3 of 2020)
  • Barclays Bank (U) Limited & 2 Others v Emerald Hotel Limited & 3 Others (Civil Appeal Nos. 70 & 72 of 2017)
  • Butebi Investments Enterprises Limited v Kibalama Mugwanga (Court of Appeal Civil Appeal No. 354 of 2013)
  • Kasibante Moses v Electoral Commission (Court of Appeal Election Petition Application No. 7 of 2012)
  • Kasule Samuel v Mubeezi James & 2 Others (Misc. Application No. 24 of 2015)
  • Edward Rurangaranga and Mbarara Municipal Council v Horizon Coaches Limited (Supreme Court Civil Appeal No. 21 of 2018)
  • Miriam Kuteesa v Nantumbwe Edith & Others (Misc. Application No. 20 of 2014)
  • Herbert Semakula Musoke and Another v Lawrence Nabamba and Others (Civil Application No. 22 of 2019)
  • Batabaire Elizabeth v Ngobi Siraj and Others (Civil Application No. 326 of 2017)
  • Bigiruo Norah v The Returning Officer & Another (Civil Application No. 23 of 2017)
  • Nyirabarore Vannis and Anor v Ngirakubanza Sarafina & Others (Application No. 37 of 2018)
  • National Housing & Construction Co. Ltd v Salome T.B. Kyomukama (Civil Application No. 133 of 2009)
  • William Kyobe u Geoffrey Gatete and another, [2001] 1 U.L.R 167
  • Loi Kageni Kiryapawo and Electoral Commission v Gole Nicholas Davis (Supreme Court Civil Application No. 15 of 2007)
  • Dr. S.B. Kingatta & Another v Suburamania Rojha Gopalan & Another (Civil Application No. 1000 of 2000)
  • Horizon Coaches Limited v Francis Mutabazi and Others (Civil Appeal No. 20 of 2001)
  • Ngenduwa Bigiruta Norah v The Returning Officer, Buliisa District and Electoral Commission (Civil Application No. 23 of 2011)
  • Rulinda Fabrice Brad & Electoral Commission v Kayanja Vincent De Paul (Election Petition Application No. 10 of 2023)
  • Kibalama Mugwanga v Butebi Investments Enterprises Limited (Civil Appeal No. 190 of 2013)
  • Uganda Revenue Authority v Uganda Consolidated Properties Limited (Court of Appeal Civil Application No. 31 of 2000)
  • Gaba Beach Hotel Limited v Cairo International Bank Limited (Civil Application No. 34 of 2003)
  • Shah Bharmal u Santosh Kumari, (1961) EA 679
  • Attorney General v Oriental Construction Co. Ltd (Supreme Court Civil Appeal No. 7 of 1990)

Full judgment

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Visare Uganda... (Civil Appeal No. 1425 of 2023; Civil Appeal No. 294 of 2024; Civil Application No. 0420 of 2023; Civil Application No. 409 of 2024; Civil Application No. 431 of 2024; Civil Application No. 531 of 2023) 2025 UGCA 359 (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.