Katabazi Dassy v Kizza James and Another (Miscellaneous Application 20 of 2025) [2026] UGHC 619 (29 May 2026)

# Katabazi Dassy v Kizza James and Another (Miscellaneous Application 20 of 2025) [2026] UGHC 619 (29 May 2026) [ Share this document on WhatsApp opens in new tab __](https://api.whatsapp.com/send?text=Katabazi+Dassy+v+Kizza+James+and+Another+%28Miscellaneous+Application+20+of+2025%29+%5B2026%5D+UGHC+619+%2829+May+2026%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fughc%2F2026%2F619%2Feng%402026-05-29) [ Share this document on X opens in new tab __](https://twitter.com/intent/tweet?text=Katabazi+Dassy+v+Kizza+James+and+Another+%28Miscellaneous+Application+20+of+2025%29+%5B2026%5D+UGHC+619+%2829+May+2026%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fughc%2F2026%2F619%2Feng%402026-05-29) [ Share this document on Facebook opens in new tab __](https://www.facebook.com/sharer/sharer.php?u=https://ulii.org/en/akn/ug/judgment/ughc/2026/619/eng@2026-05-29) [ Share this document on LinkedIn opens in new tab __](https://www.linkedin.com/sharing/share-offsite/?url=https://ulii.org/en/akn/ug/judgment/ughc/2026/619/eng@2026-05-29) [ Share this document by email __](mailto:?subject=Take%20a%20look%20at%20this%20document%20from%20ULII:%20Katabazi%20Dassy%20v%20Kizza%20James%20and%20Another%20%E2%80%A6&body=https://ulii.org/en/akn/ug/judgment/ughc/2026/619/eng@2026-05-29) [ Download RTF (1.7 MB) ](/en/akn/ug/judgment/ughc/2026/619/eng@2026-05-29/source) Toggle dropdown * [Download PDF](/en/akn/ug/judgment/ughc/2026/619/eng@2026-05-29/source.pdf) Report a problem ##### Is there something wrong with this document? Problem category *Incorrect informationMissing informationNo PDF downloadDocument is emptyDocument is not accessible on my deviceOther What's the problem? * Your email address * CancelReport problem __ * Share * [ Download RTF (1.7 MB) ](/en/akn/ug/judgment/ughc/2026/619/eng@2026-05-29/source) * [Download PDF](/en/akn/ug/judgment/ughc/2026/619/eng@2026-05-29/source.pdf) * * * * * Report a problem __ ##### Katabazi Dassy v Kizza James and Another (Miscellaneous Application 20 of 2025) [2026] UGHC 619 (29 May 2026) Copy citation * __Document detail * __Related documents Citation Katabazi Dassy v Kizza James and Another (Miscellaneous Application 20 of 2025) [2026] UGHC 619 (29 May 2026) Copy Media Neutral Citation [2026] UGHC 619 Copy Hearing date 26 March 2026 Court [High Court of Uganda](/en/judgments/UGHC/) Court registry [Kabale High Court](/en/judgments/UGHC/UGHC-kabale-high-court/) Case number Miscellaneous Application 20 of 2025 Judges [Karoli Lwanga Ssemogerere, J](/en/judgments/all/?judges=Karoli%20Lwanga%20Ssemogerere%2C%20J) Judgment date 29 May 2026 Language English Summary Ex‑parte order set aside where defendant showed sufficient cause; hearing to resume after security and payment into court. ###### Flynote * Civil Procedure — Setting aside ex‑parte judgments — Whether defendant showed "sufficient cause" to set aside decree — Order IX Rules 12 & 27, Civil Procedure Rules (S.I. 71‑1) Read full summary __ ##### Ask AI Ask questions and understand this document faster using AI. __Ask AI * * * Skip to document content **REPUBLIC OF UGANDA** **IN THE HIGH COURT OF UGANDA HOLDEN AT KABALE** **MISCELLANEOUS APPLICATION NO. 20 OF 2025** **ARISING OUT OF CIVIL SUIT NO. 0023 OF 2011- KISORO CHIEF MAGISTRATES** **KATABAZI DASSY :::::::::::::: APPLICANT** **VERSUS** **KIZZA JAMES:::::::::::::: RESPONDENTS** **KIZZA ESTHER** **BEFORE: HON. JUSTICE SSEMOGERERE, KAROLI LWANGA** _**RULING**_**:** _**Brief Facts:**_ This is an application to set aside an ex-parte order issued by this Honourable Court in HCCS No. 13 of 2023. Applicant prays this court for further reliefs namely; leave to appear and defend the main suit. _**Representation:**_ Applicant is represented by M/S Kasirye Byaruhanga and Company Advocates. Respondent is represented by M/S Muhumuza Kizza Advocates and Legal Consultants. **Brief Facts:** This application is brought by way of notice of motion under **Section 33 of the Judicature Act, Section 98** of the **Civil Procedure Act, Cap 282, (** the**“Civil Procedure Act”)** and **Order 9 Rules 12** and**27** of the**Civil Procedure Rules S.I. 71-1 (** the**“Civil Procedure Rules”).** The application was filed in this honourable court on November 10, 2025. The application was first heard inter-partes on March 26, 2026. Court stipulated a schedule to complete pleadings was fixed. On April 15, 2026, at a further hearing, this honourable court gave the parties a schedule for filing written submissions. Both parties missed their filing deadlines but the submissions will be taken into account in rendering this decision. **Grounds of the Application** : The grounds of the application are: 1. The ex parte order against the applicant on May 16, 2025 was made without affording the applicant an opportunity to be heard. 2. The applicant was in court on May 13th, 2025, he wasn’t given an opportunity to be heard. 3. The applicant has a plausible and robust defence to the respondents’ claim. 4. The hearing of the respondents’ case proceeded in the absence of the applicant. 5. The applicant stands to suffer irreparable loss and damage if the ex parte order and subsequent proceedings are not set aside. 6. The application has been made without undue delay. The grounds are substantiated in an affidavit in support deponed to by the applicant. Applicant repeats the grounds listed above in his affidavit. In paragraph 5, he avers that he was denied any participation in court proceedings during the hearing of the plaintiffs’ claim. In paragraph 4 of the affidavit, he states that the hearing of the respondents’ case proceeded in the absence of the applicant. Respondents opposed the application. The second respondent, in her affidavit in reply in paragraph 3 states the applicant’s affidavit is full of deliberate lies and falsehoods. 2nd respondent in Paragraph 5, states applicant was given an opportunity to present his case in court and filed a written statement of defence on May 22, 2023. That the applicant failed to file witness statements in accordance with summons for directions issued by court on September 2, 2023, and a reminder by the former Trial Judge on February 12, 2025 and ordered a last adjournment to May 7, 2025 and was condemned to costs of the day. Respondent continued that the applicant did not appear in court on May 7, 2025, and on May 9, 2025 appeared in court and acquiesced requested for a joint survey. That the joint survey was completed on May 12, 2025 by the two surveyors representing the parties; Lubega Brian for the respondents and Martin Segirinnya for the applicants. That the survey report was presented in court on May 13, 2025. Court made proforma orders, which are subject of this applicationon May 13, 2025. In paragraph 6 of the affidavit in reply, 2nd respondent avers, applicant has partially complied with the court orders removing the hedges that were growing on the respondent’s land. In paragraph 9, 2nd respondent avers she filed an application for execution in this honourable court to the tune of UGX 30,400,000= vide **Execution Application No. 44 of 2025**. 2nd respondent in paragraph 10, prays for security for costs before his application can be entertained. Applicant in an affidavit in rejoinder, states his application is not barred in law. Further in paragraph 4, that the ex parte order was issued in the absence of the 1st and 2nd defendant. Applicant in paragraph 6, maintains he would suffer irreparable damage. He denies the application is brought in bad faith and that he will suffer a miscarriage of justice if Execution Application No. 44 of 2025 succeeds. _**Issues for determination by court**_ : The application raised two issues for determination by court. These are: 1. Whether the application to set aside the ex-parte orders of this honourable court should be granted? 2. What remedies are available to the parties? _**Discussion and Analysis**_ : The law on setting aside ex parte orders is set out in **Order IX, Rules 12 and 27 of the Civil Procedure Rules S.I. 71-1 (the “Civil Procedure Rules”)**. These provide as follows. **Order IX, Rule 12** of the**Civil Procedure Rules** provides as follows: “Where judgment has been passed pursuant to the any of the preceding rules of this Order, or where judgment has been entered by the registrar in cases under Order L of these Rules, the _court may set aside_ or vary the judgment _upon such terms as may be just_.” [Emphasis mine]. The above relief is discretionary. **Order IX, Rule 27** of the **Civil Procedure Rules** provides as follows: “In any case where any decree is passed ex-parte against a defendant, he or she may apply to court by which the decree was passed for an order to set it aside; and ……that he or she was prevented by any _sufficient cause from appearing when the suit_ , was called for hearing, the court may make an order setting aside the decree as against him or her _upon such terms, as to costs, payment into court, or otherwise_ as it thinks fit, and shall appoint a day proceeding with the suit.” [Emphasis mine]. The above provision sets conditions for exercise of discretion in favour of the applicant. These are twofold. First, that he or she was prevented by sufficient cause from appearing when the suit was called for hearing. Second, the setting aside is secured by such terms, as to costs, payment into court or otherwise as it thinks fit. The authorities that define sufficient cause have been addressed by this honourable court in **Akankwasa Fidelis and Asiimwe Agnes v Leo's Investment Limited (Miscellaneous Application No 019 of 2025) [2025] UGHC 816 (2 September 2025**). In this decision, this honourable court affirmed the 4 circumstances set out by Odoki CJ., as he then was in **Captain Philip Ongom vs. Catherine Nyero Owota Supreme Court Civil Appeal Number 14 of 2001** where he defined “sufficient cause” as _any_ of the following circumstances: 1\. A mistake by an advocate though negligent may be accepted as sufficient cause. 2\. Ignorance of procedure by an unrepresented Defendant may be sufficient cause. 3\. Illness by a party may amount to sufficient cause. 4\. Failure to instruct an advocate is not sufficient cause for a litigant. Both parties disagree on the course court proceedings took. It is necessary to examine the court record. Case for the applicant is to the effect that he was denied a hearing. Case for the defendant is that the findings of court were led in evidence in open court on May 13, 2025. The relevant findings of the Joint Survey Report filed in Court, were tabled are at page 6 of the report to the effect; 1. The boundaries of Plot 3 and Plot 5, Komukonyo Lane were established, and it was discovered that the existing ground hedge separating the two plots were wrongly planted. 2. A portion of Plot 3 Komukonyo Lane, measuring 45 square meters or 0.011 acres was wrongly fenced off within the boundaries of Plot 5 Komukonyo Lane, and was being used as gardens by the registered proprietor. 3. The boundaries of Plot 103, were opened up and the boundary wall fence erected on this plot encroached onto Plot 3 Komukonyo Lane by 5.4 square meters or 0.001 acres on ground. The joint survey report made a number of recommendations to the effect that 1. Dialogue was necessary between the parties to prevent future inconsistencies. 2. It was recommended that the boundary wall fence along Plot 103 be correctly erected to avert future boundary inconsistencies. On May 7, 2025, Counsel for the respondents requested for the matter to proceed ex-parte, when the applicant and his counsel failed to appear. On May 9, 2025, court briefly heard the case for the plaintiffs to the effect that the applicant erected a boundary wall on their land in 2021. Each party nominated a surveyor. At the hearing on that day, applicant was represented by Ms. Natukunda who was informed the application was proceeding ex-parte per the prior order of court. The boundary opening was ordered to rescue the parties from the costs of continuing litigation. On May 13, 2025, the Joint Survey Report was presented in court in the presence of the plaintiffs (now respondents) and the applicant (1st defendant). The findings were not contested. Applicant agreed to remove the hedge immediately. During this hearing, Applicant was unrepresented. Court made the following orders in lieu of compliance. These were to the effect: 1. Applicant would remove the boundary wall and the hedge by close of business May 19, 2025. 2. Court would conduct a locus in quo on May 20, 2025. 3. If the applicant were in default, he would be in contempt of court, and fines would accumulate at the rate of UGX 100,000 per day in default. On May 19, 2025, court informed the LC I Chairman Mwanjari and the parties that locus would be conducted on May 20, 2025 to confirm the findings of the survey report. Locus found partial compliance with court’s orders. Court inspected the landed enclosed by the boundary wall and found the surveyors’ pegs still in place inside the boundary wall. The applicant was present and he had removed the hedge. At locus, he said, he could not break a wall on land he didn’t own. Court makes the following findings of fact. 1. At the hearing of May 13, 2025, and locus in quo of May 19, 2025, applicant was unrepresented. 2. Applicant had withdrawn instructions from his counsel, Ms. Agnes Natukunda. On a balance of probabilities, the sufficient cause finding using the criteria in the Captain Phillip Ongom decision is barely met. I find that the applicant had some participation in the proceedings and cannot blame court for withdrawing instructions from his prior counsel. I reluctantly find he was ignorant of the consequences of his deliberate actions. In the premises, I answer the first issue in the affirmative; and grant the application to set aside the ex parte order. Answering the second issue, that of which remedies should issue, court must in order to meet the ends of justice, use its discretion judiciously after allowing the application to set aside ex parte orders. In the Akankwasa decision, court cited **Kiyimba Eddie Kalema Lwembaawo v Dooba Enterprises, Miscellaneous Application No. 89 of 2012** , where Madrama J., as he then was cited a Kenyan authority, **Dhillon and Another versus Dhillon [2006] 1 EA page 66 – 67** on the judicious use of court discretion, “ “The main concern of the Court is to do justice to the parties, and the Court will not impose conditions on itself to fetter the wide discretion given it by the rules…" The powers of the court to may make an order setting aside the decree as against him or her _upon such terms, as to costs, payment into court, or otherwise_ as it thinks fit, should be exercised judiciously. In short with discretion. I have perused the entire record. The 2nd respondent is one of two joint tenants registered as proprietors of Plot 3 Komukoryo Lane, Land at Kikungiri. A copy of their land title is marked as “C”. As owners, they have standing to sustain claims of trespass. Second, the court record in “F” and “G”, each on behalf of the two parties, has two survey reports, the first by Land Point for the Respondents, and the second a report by Mukose Abaraka, for the Commissioner of Surveys and Mapping to open the boundaries of the same plots of land authorised by Counsel, and Counsel now for the Applicant, M/S Kasirye and Byaruhanga Advocates. It is instructive, that the second report, notes in its findings about the boundary wall, that “the lessee never reached this point Z.38 by 2.5 m, which was not captured during the wall fencing due to the fact that the owners of Plot 85 seem not to have known where the boundaries lie and this could have been caused by private surveyors whom they used, who gave them wrong findings. And this causes a scramble for the land.” In his recommendation, the surveyor recommended as follows: “Then as his wall fencing was not even, what he has to do is to fence according to his boundary the way it has been opened, following the plot beacons.” In short, the opening of the boundaries is a cartographic exercise which court deployed to arrive with certainty which party was in default. Sadly, the evidence on the record in “F” and “G” from similar exercises discloses the same. There is one triable issue, left for court to determine, the extent of the default of the applicant and apportionment of responsibility. In determining the terms of reinstatement, I must take into account the fact that the applicant has complied partially with the court orders. I must also take into account that an execution application in the amount UGX 31,250,000/= is pending and remains unsatisfied for a portion of the judgment amount outstanding. This application succeeds in the premises. I grant the application to set aside the ex parte order on the following terms. I grant the application to set aside the ex-parte judgment using the powers of court under **Order IX, Rule 27** of the **Civil Procedure Rules** on the following terms to meet the ends of justice. 1. Applicant to deposit UGX 5,000,000/= as security for costs within 30 days from the date of this order. 2. Applicant to deposit UGX 5,000,000/= as further payment into court from the applicant to defend the suit within 30 days from the date of this order. 3. Hearing of the main suit to resume immediately after deposit of the sums in 1 and 2 above into court. 4. Costs of the application will abide the determination of the main suit. I SO ORDER, **DATED AT KABALE THIS 29****TH****DAY OF MAY 2026** **SSEMOGERERE, KAROLI LWANGA** **JUDGE.** Ruling delivered virtually on May 29, 2026. Applicant is represented by Mr. Semigamba Abraham. Respondent is represented by Mr. Arinaitwe Rujara. Parties are absent. **SSEMOGERERE, KAROLI LWANGA** **JUDGE.** 5 #### __Related documents #### More documents like this one ▲ To the top >