Wakilii

Were and Another v Kakande and 4 Others (Miscellaneous Application 782 of 2023)

High Court · [2023] UGHCLD 234 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order and reinstate civil suit arising from Civil Suit No. 913 of 2021
Decision
Civil Suit No. 913 of 2021 reinstated for hearing on the merits

Observed later treatment

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Holding

The High Court allowed the application to set aside the dismissal order and reinstate Civil Suit No. 913 of 2021. The court held that although the applicants paid security for costs over eight months late and without seeking leave of court, the payment of security combined with triable issues involving allegations of fraud and competing claims to title constituted sufficient cause under Order 26 rule 2(2) of the Civil Procedure Rules. The court emphasised that administration of justice requires cases to be heard on their merits where possible, particularly where illegality is alleged.

Outcome

Civil Suit No. 913 of 2021 reinstated for hearing on the merits

Facts

The applicants, registered proprietors of land comprised in Block 90 plot 32 at Katalemwa, filed Civil Suit No. 913 of 2021 seeking a declaration of ownership. The 1st and 2nd respondents applied for security for costs, which the court ordered at UGX 50,000,000 to be paid within three months. The applicants appealed and obtained an ex-parte stay, but the appeal was dismissed on 11 November 2022. The deadline for payment expired on 16 May 2022. The applicants paid the security on 25 January 2023, over eight months late. Meanwhile, the court had issued directions for joint scheduling and witness statements in July and August 2022, which the applicants did not comply with. On 14 February 2023, the suit was dismissed for want of prosecution and failure to furnish security for costs. The applicants filed this application on discovering the dismissal in March 2023. The respondents opposed, claiming they held the original certificate of title and that the applicants' registration was fraudulent.

Issues

  1. Whether the dismissal order of Civil Suit No. 913 of 2021 should be set aside and the suit reinstated.
  2. Whether the applicants demonstrated sufficient cause for failure to furnish security for costs within the prescribed period.
  3. Whether the applicants' late payment of security for costs without leave of court constitutes sufficient cause for reinstatement.

Orders

  • Application allowed.
  • Civil Suit No. 913 of 2021 reinstated.
  • Claim against the 3rd, 4th and 5th respondents dismissed for want of service under Order 5 rule 3(b) of the Civil Procedure Rules.
  • Costs to abide the outcome of the suit.

Rules and key headnotes

Civil Procedure — Security for Costs — Reinstatement After Dismissal — Sufficient Cause
Where a suit is dismissed under Order 26 rule 2(1) of the Civil Procedure Rules for failure to furnish security for costs, the court may set aside the dismissal upon proof of sufficient cause under Order 26 rule 2(2). Late payment of security for costs, even without leave of court, may constitute sufficient cause where triable issues exist and the interests of justice favour hearing the matter on its merits.
Civil Procedure — Dismissal for Want of Prosecution — Remedy Available
The dismissal of a suit for want of prosecution seals the matter for the plaintiff in the same court which issued the dismissal order. The remedy available is to appeal against the order or commence a fresh action subject to limitation, unless exceptional circumstances compel the court to exercise its inherent powers under section 98 of the Civil Procedure Act to reinstate the suit.
Civil Procedure — Illegality — Overriding Effect on Pleadings
Where pleadings raise allegations of illegality, such as competing claims to title with one party claiming registered ownership and the other claiming possession of the original certificate of title, the court will not ignore the illegality as it overrides all manner of pleadings and requires determination on the merits.

Legislation cited (9)

Cases cited (5)

  • Agnes Nanfuka Kalyango & others v Attorney General & Another (Court of Appeal Civil Appeal No. 64 of 200)
  • Gold Beverages (U) Ltd v Muhangura Kenneth and Another (Miscellaneous Application No. 674 of 2019)
  • Moses Makubuya v Namuddu Beatrice (Miscellaneous Application No. 805 of 2021)
  • Kigozi Andrew v Mukasa Ronald (Miscellaneous Application No. 1516 of 2022)
  • Makula International Ltd v H.E Cardinal Nsubuga & Another (Civil Appeal No. 4 of 1981)

Full judgment

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

Were_and_Another_v_Kakande_and_4_Others_(Miscellaneous_Application_782_of_2023)_[2023]_UGHCLD_234_(4_August_2023)
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.