COURSE NAME: CIVIL PROCEDURE II

COURSE CODE: L3218

REG NUMBER: 18/U/13792/EVE

STUDENT NO: 1800713792

NOT RETAKE:

NUMBERS ATTEMPTED, 8, 4, 5,
NO.8 (I)
The power of Court to issue an injunction (temporary injunction) is found in Section 98 of the
CPA, Section 33 and 38 of Judicature Act and Order 41 rules 1 and 9 of CPR. Injunctions are
issued early in a suit or at any time to maintain the status quo by say preventing the defendant
from becoming insolvent or doing harmful actions in respect of the subject matter of the dispute
as laid out in Francis Drake Lubega vs. Attorney General MA 31& 32 OF 2011(cc). The grant of
an injunction is entirely discretionary but like all discretionary powers, it must be exercised
judicially. The procedure of applying for injunctions is by Chamber summon accompanied by an
affidavit. Service of a copy of the application on the party against whom the order is sought is
mandatory and all proceedings must be interparty.
Noor Mohammed Jan Mohamed vs KassamaliVirji (1953) 20 EACA 80. It has long been
established that the conditions for grant of a Temporary injunction are that-
a) The Applicant must show a prima facie case with a probability of success. Geulle vs Cassman
Brown co (1973) EA 358. A prima facie case with a probability of success is no more than that
the court must be satisfied that the claim is not frivolous or vexatious. In other words, that there
is a serious question to be tried. The applicant is required at this stage to show a probability of
success but not success. Robert Kavuma vs Hotel International SCCA 8 of 1990(1993)2 KALR
73 (per Wambuzi CJ);
b) An injunction will not normally be granted unless the applicant might otherwise suffer
irreparable injury which would not be adequately compensated by an award of damages. Tonny
Wasswa vs Joseph Kakooza (1987) HCB 79. Daniel Jakesa vs Kyambogo University MA 549
of 2013 established that circumstances that bar one from sitting their exams was likely to cause
irreparable damage
c) Where Court cannot make up its mind after considering the above criteria, the applicant must
satisfy it that the balance of convenience lies in his or her favour. In Sulaiman Muwonge Lubega
vs. Attorney General(2012) HCB, the Constitutional Court held in an application to stop a
commission of inquiry from further proceeding still the disposal of the petition.
(ii)
The Civil Procedure Amendment Rules SI 33 of 2019 provide for summons for Directions
which in a way will avail an opportunity in an omnibus way to address or resolve all matters
preliminary to a trial including all interlocutory applications and to enable the court give
directions to ensure an expeditious and economical disposal of suits. The scope of the summons
for directions is better appreciated by looking at Form 14 A

Rule 2 calls for taking out of for direction within 28 days from the date of the last pleading filed
in accordance with order 8 rule 18. Default in taking out summons for directions abates the suit
but the plaintiff may subject to the law of limitation file a fresh suit.

The summons is heard by the Registrar pursuant to Order 50 rule 3 as amended. Following the
disposal of the summons for direction and after compliance with any orders made thereon, the
suit shall proceed for conference scheduling under Order 12 rule 1 CPR to sort out points of
agreement and disagreement before the trial Judge and must be conducted within 28 days after
the last reply or rejoinder made under rule 18(5) of Order 8.
In Carlton Douglas Kasirye V Sheena Ahumuza, Civil Application 150 of 2020,
Bonifance Wamala J of the Commercial court held generally and made wide ranging
observations on the application of Order 11A as follows-
(a) Summons for directions must always be taken out by the plaintiff within 28 days of the last
pleading otherwise the suit abates.
(b) the mediation envisaged under the amendment is mediation conducted on reference by a
judge at the hearing of the summons or scheduling.
(c) Order 11A Rule 1 (4) (e) creates an exception to the requirement under sub-rule (6) to the
effect that the rule applies to all actions instituted by way of a plaint except an action in
which a matter has been referred for trial to an official referee or arbitrator
(d) a court accredited mediator is an official referee because in his or her role, he or she
performs the function of an official referee of the Court,
(e) Where a matter is referred by the Court to mediation, the plaintiff would not be expected to
take out summons for directions within 28 days provided for under sub-rule (2) of Rule 1.
(f) Mediation is no longer mandatory and the requirement for mandatory mediation ceased to
apply.
(g) Reference to mediation is an option that can be explored either during hearing the
summons for directions or when the case is placed before a Judicial Officer for scheduling
or hearing.
(iii)

Security for costs is provided for under order 26 of CPR Rule 1 states that applications under this
order shall be by way of summons in chambers.

Rule 101 of the Supreme Court rules provides for payment of security for costs, unless
exempted. In Noble Builders (U) Ltd vs Jaspal Singh Sandhu (MA 15 of 2002). Interpreting
rules 101 and 109 of the Supreme Court rules, Justice Mulenga stated that the general principle is
that an appellant should provide security for costs of the appeal unless the Court exempts him
due to inability.

In an application for security for costs, the power to grant it is discretionary. It must be filed at
the earliest stage in the case or it risks being rejected for substantial delay in filing .Moor
Mohamed Abdullah vs Ranchobhai J Patel & Anor (1962) EA 447.
In Anthony Namboro vs Henry Kaala (1975) HCB HCB 315 Sekandi J held on an application for
security for costs that the main consideration to be taken into account in an application for s.f.c
are –
A) Whether the applicant is being put to undue expenses by defending a frivolous and vexatious
suit.
b) That he has a good defense to the suit.
c) And that he is likely to succeed. Only after these factors have been considered, would factors
like inability to pay come into account?
d) Mere poverty of a plaintiff is not by itself a ground for ordering security for costs. If this were
so, poor litigants would be deterred from enforcing their legitimate rights through the legal
process.
An order for security for costs is not on full indemnity basis and the amount to be deposited the
discretion of Court, exercised with regard to the circumstances of each case.
(vi) Dismissal without being heard on their merits
Suits can only be dismissed without trial on their merits when one of the parties raises a
preliminary objection in court pursuant to Order 6 rules 27 and 28 of the CPR. This include
objection to lack of cause of action, locus standi, capacity to sue, jurisdiction, limitation of time
and res judicata. In Mukisa Biscuits Manufacturing Company Limited vs. West End Distributors
(1969) EA 696 AT 700, Law JA stated that “so far as am aware, a preliminary objection consists
of a point of law which has been pleaded, or which arises by clear implication out of the
pleadings and which if argued as a preliminary point may dispose of the suit. Examples are; an
objection to the jurisdiction of the Court”.

In Registered Trustees of Catholic Diocese Vs Standard Bank Limited; it was held that
preliminary points are to be raised at the beginning of the hearing and not at the end of the
hearing. It was further held that the issue of capacity to sue goes to the very root of the case and
must be pleaded. In N.A.S Airport Services vs AG Kenya (1959) EA 53, it was held that though
the object of the Order (6 rule 27) is expedition, the point of law must be one which can be
decided fairly and squarely one way or the other, on facts agreed or not in dispute /in issue on the
pleadings and not one which will not arise if some fact or facts in issue should be proved.

Where a preliminary objection raises issues of evidence which requires proof, it is to be

overruled as was buttressed in Robert Lusweswe vs. GW Kasule (1987) HCB 62

Accordingly, no matter how complex or interesting the facts of the case may be, if those facts are
backed by some legal irregularity, impropriety or nullity then the Court is enjoined to dispose of
the matter on the basis of the particular legal issue without waiting to resolve any other issue
between the Parties. In this connection the Court is expressly allowed to postpone the issues of
facts until after issues of law have been determined. In doing so, the Court disposes of the entire
dispute efficiently and expeditiously without expending unnecessary judicial time and resources
on a dispute that is after all on starter.” Advocates must take care to determine whether the ruling
on the preliminary objection results into an Order or a Decree in order to determine whether an
appeal there from is automatic or is one that requires leave of the court.
No.4

Issue 1. What is the appropriate court to grant the remedy to Mukalazi Joshua?

Issue 2. What are the possible grounds of appeal?

Issue 3. What is the most appropriate recourse in the circumstances?

Analysis of issues:

Issue 1. What is the appropriate court to grant the remedy?

The competent court to hear and determine appeals from the High Court is the Court of Appeal.
S.66 of the Civil Procedure Act provides for a right of appeal for decrees and orders of the High
Court to the Court of Appeal.

Further, S.10 of the Judicature Act prescribes a right of appeal from the decision of the High
Court under the Act to the Court of Appeal. The Court of Appeal must be presided over by a
panel of not less than three justices. This was stated by Justice EgondaNtende in the case of
Murisho Shafi v A.G. Therefore, the court competent to grant the remedy to Mukalazi Joshua is
the court of appeal and not the Constitutional court.

Issue 2. What are the possible grounds of appeal?

As a rule, fraud once found vitiates all other matters of the case. This is because fraud is a very
severe factor.This was the position of the court in Makula International Ltd v His Emminence
Cardinal Emmanuel Nsubuga.

However, fraud must be strictly proved. This was emphasized in the case of Fredrick Zaabwe v
Orient Bank. Thus, where the alleged fraud is not strictly proved, the defendant may appeal
challenging the decision of the Court.

From the foregoing, Mukalazi Joshua can appeal on grounds that the judge erred in law when he
passed judgment against Joshua based on fraud yet the fraud was not strictly proved.

Issue 3. What is the most appropriate recourse in the circumstances?

From the foregoing, the appropriate recourse is to appeal from the orders of the High Court to the
Court of Appeal.

The appropriate procedure of appeal is as follows.

The appeal lies from an order of the High Court and it is not mandatory requirement to extract a
decree before appealing. This is provided for by R.87 of the Court of Appeal Rules. This position
was reinstated by the Court of Appeal in the case of UBC v Sinba (K) Ltd.

The appeal to the Court of Appeal is commenced by filing a notice of appeal and the following
principles apply to the notice: The notice of appeal is governed by r.76 of the Court of Appeal
Rules. The notice of appeal must be in the form prescribed under the rules. URA v Uganda
Consolidated Properties.

The notice of appeal must be filed in the High Court and must maintain a title on the pleadings in
the High Court. The notice of appeal must be endorsed by the Registrar of the High Court.The
notice of appeal must be filed in the High Court fourteen (14) days after the date of the decision.
This was stated in the case of Ggaba Beach Hotel v Cairo International Bank. The notice of
appeal is required to be served on the respondent and/or other interested parties within seven (7)
days from the date of judgment.

The appellant must retain evidence of service of the notice of appeal which is then required to be
transmitted to the Court of Appeal by the Registrar of the High Court. However, in practice, it is
the appellant’s Counsel who transmits the same to the Court of Appeal who then proceeds to
extract an order before appealing to the Court of Appeal. (This extraction procedure in no
mandatory)

This is the position of the law under R.87 of the Court of Appeal Rules.

In Monday Eliab v A.G, it was stated that failure to extract a decree is not fatal. However, it is
necessary to avoid unnecessary objections and to apply for stay of execution of the decree before
the appeal is determined.

The intending appellant is required to launch a notice of appeal to the High Court.
The notice of appeal which must be lodged within 14 days after the day of the decision of the
High Court and served within 7 days after the date of lodgment in the High Court. This position
was laid in Mulowoza and Bros Ltd v Elisha and Co.

The intending appellant must then formally write a request of proceedings to the Registrar of the
High Court to obtain certified copies of the proceedings and judgment before framing grounds of
appeal Court and must be copied to the Respondent or his Counsel and must be filed in court
within 30 days after the date of the decision.

It is important to note that all this is a mandatory requirement for success of an appeal.

This is provided for under R.83 (2), (3) of the Court of Appeal Rules and was emphasized in the
case of Wanume David Kitamirike v URA.

The Registrar of the High Court is then required to prepare and avail certified copies of the
proceedings and judgment to the intending appellant as requested.

Where the court notifies Counsel for the intending appellant that the proceedings are ready, the
letter of notification must be served by the Court on the Appellant’s Counsel.

The appellant is required to file a memorandum and record of appeal within 60 days from the
date of lodgment of the notice of appeal.

This is provided for under R.83 (1) of the Court of Appeal Rules.

The same position was emphasized in the case of Hon. Rose Akor Okuru v Among Annet.

The memorandum of appeal attracts court fees and must be paid at the time of filing.

This is provided for under R.83.

This requirement was reiterated in the case of Dr. Frank Nabwiso v Electoral Commission.

The appellant must also pay security for costs; the sum of 200,000/= directly in the Court of
Appeal.

This requirement was emphasized in the case of Dr. Frank Nabwiso v Electoral Commission.
Once the memorandum and record of appeal is presented to the Court of Appeal and duly filed,
the Registrar of the Court of Appeal must endorse the memorandum of appeal.

The memorandum and record of appeal must be served on the Respondent within 7 days after its
endorsement.

This was stated by the Court in the case of A.G v ADKM Lutaaya.

Once the memorandum and record of appeal is served, the appeal is scheduled for scheduling
conference.

Thereafter, the appeal is ready for hearing by a panel of 3 justices of Appeal.

Therefore, the above procedure is the appropriate recourse in the circumstances of the case.
S.25 CPA it is provided that the Court after the case has been heard shall pronounce judgment.

O.9 r.6 of the CPR. Where a plaintiff files a suit and serves summons onto the defendant and the
defendant does not comply with the orders in summons i.e., does not file the defense within the
time prescribed in the summons and the plaintiffs claim is liquidated.

In the case of Vallery Alia v Alionzi John, c It’s a mandatory requirement that the defendant
must have been served with summons and the relevant pleadings in the manner required for
service of summons stipulated under order 5.

In the case Craig v Kanseen [1943] 1 All ER 108 HELD; that the failure to serve the summons
upon which the order was made was not a mere irregularity, but a defect which made the order a
nullity and therefore, the order must be set aside.

Orde5 rule 16 states that service must be evidenced by filling an affidavit of service. In the case
of Edison Kanyebwera v PastoriTumwebaze Held; there was no evidence on record that the
defendant was served.

Order 5, rule 17 of the C.P.R requires the serving officer, to make an affidavit of service stating
the time when and the manner in which the summons was served and name and address of the
person, if any, identifying the person served and witnessing the delivery of the tender of the
summons.

The provisions of this rule are mandatory, in the instant case the requirements are not complied
with. There is no affidavit of service on the record. The absence of such affidavit leads inevitably
to the conclusion that the defendant was not properly served with the hearing notice before the
suit and the suit can’t be heard in his absence Therefore noncompliance with order 5 rule 2 of the
Civil Procedure Rules renders the proceedings an irregularity.

I would give an order setting aside the application for failure to comply with O.5 rule 1(2) (c).

B)

The law governing Preliminary objections is set out in order 6rule 27 and 28.
The position of the law is that where a preliminary objection is raised, it should be tried
expeditiously.

In the case of In Mukisa Biscuits Manufacturing Company Limited vs. West End Distributors
(1969) EA 696 AT 700 a preliminary objection consists of a point of law which has been
pleaded, or which arises by clear implication out of the pleadings and which if argued as a
preliminary point may dispose of the suit. Examples of point of law include luck of cause of
action.

In URA vs UCC court held that determination of issues of law takes precedence over
determination of issues of facts. no matter how complex or interesting the facts of the case may
be, if those facts are backed by some legal irregularity, impropriety or nullity then the Court is
enjoined to dispose of the matter on the basis of the particular legal issue without waiting to
resolve any other issue between the Parties.

Robert V G.W Kasule& Anor held that where a preliminary objection raises issues which require
to be proved by evidence to enable court to decide the matter, it should be overruled or dismissed
and the suit be tried on the merits.

Katabazi and 21 Ors v AG of Uganda Held; the matter raised by Mr. Ngalo was not one which
could be dealt with as a preliminary objection because it was not on point of law but one
involving facts where the preliminary objection is of a fact to be proved by evidence and,
therefore, it could not be a matter for a preliminary objection and hence the dismissal.

In the instant case since the preliminary objection raises issues which require to be proved by
evidence, I would give an Oder dismissing the preliminary objection and try the case on its merit.

C.)

The position of the law is that the revision powers are only confined to matters determined by
the Magistrates Court and does not apply to proceedings originating from the High court for
example to decisions made by the Registrar of the High court.

S.83 of the CPA. The High Court may call for the record of any case which has been determined
under this Act by any Magistrate Court and if that Court appears to have Exercise of a
jurisdiction not vested in it in law, failure to exercise a jurisdiction so vested, acting in the
exercise of its jurisdiction illegally or with material, irregularity or injustice. In the instant case,
the order was made by an officer of the high court and thus can’t be reviewed.

In the case of Ddegya Trading stores Uganda Limited vs. URA Civil Appeal 44 of 1996, it was
held by the Court of Appeal that The Registrar, his Deputy and or Assistants are officers of the
High court. They are not governed by the Magistrates’ Court Act when they sit as a court. Under
order 50 rule 4 of the Civil Procedure Rules,

A Registrar presides over a civil court when dealing with matters under Order 50 rules 1,2 &3 of
the Civil Procedure Rules therefore the registrar of the high court has jurisdiction to grant such
orders.

In the instant case therefore, I would issue an order dismissing the application for want of
jurisdiction since the high court judge has no revisionary powers to review orders made by a
registrar in the foregoing circumstances and hence the application is incompetent.

D)

An appeal ordinarily refers to a reconsideration of a matter tried and adjudicated upon by

the Court of first instance by a higher court in a hierarchy described by law to ascertain the
correctness of the decision complained of.

An appeal is a creature of statute as laid out under section 66 of the civil procedure act and order
44r3 of the civil procedure rules.in the case of Orient Bank v Fredrick Zzabwe court held that an
appeal is a creature of a statute and the right of appeal cannot be implied or inferred.

The position of the law is that, a Court can sit in its own judgment on review.

the remedy of review is provided for under O.46(1) of the CPR and under S.82 of the CPA.

In the case of In Nyamugo Advocates vs. Moses Koga CACA 322 of 2000(K), it was held that if
a view held by the Court in the original record is a possible one it cannot be an error apparent on
the face of the record even though another view was also possible thus the chief magistrate was
wrong in dismissing the application for review.
O. 43 r 1 is to the effect that Every appeal to the High Court shall be preferred in the form of a
memorandum signed by the appellant or his or her advocate and presented to the court.

S.79. CPA (1) Except as otherwise specifically provided in any other law, every appeal shall be
entered –within thirty days of the date of the decree or order of the court as the case may be
appealed against; but the appellate Court may for good cause admit an appeal though the period
of limitation prescribed by this section has elapsed.

In the case of Sarah Kintu v Jjombwe Ssebaduka (civil appeal no. 025 of 2011) HELD; The laws
concerning lodging of appeals from the lower Courts to the High Court are Order 43 rule 1 of the
Civil Procedure Act, which provides that an appeal shall be commenced by a memorandum of
appeal; and Section 79 (1) (a) of the Civil Procedure Rules, Cap. 71 which provides that an
appeal shall be entered within thirty (30) days of the date of the decree or order of the Court. In
the instant appeal, the appellant commenced the appeal with a notice of appeal; and filed the
memorandum of appeal on 5th August 2011 which is far beyond the described time by law
within which to file an appeal. Definitely, therefore, this appeal was filed out of time.

In the instant case therefore, the appeal was filed within the requirements of the law since the 30
days have not yet elapsed.

I hearby allow the appeal to be heard on merit since it is filled in time .

A judgment is passed against a party to the suit, that judgment is binding on such a party and any
other party to whom it relates unless and until set aside, reversed or otherwise varied. In George
William Katerega v Commissioner Land Registration it was held that a judgment in rem binds all
person even when they are not parties to the proceedings and are stopped from averring that the
status of persons or things, or the right to title to property are other than what the court has by its
judgment declared it to be

Order 9 rule 12 empowers court that has entered judgment to pass a decree, pursuant to any of
the preceding rules to the order or the judgment in an uncontested matter under O.50 to set aside
such a judgment or otherwise vary the same on such terms and conditions as the court may deem
fit. The rule itself provides that the judgments capable of being set aside thereunder includes a
default judgment under Order 9 rule 6-7, an interlocutory judgment under Order 9 rule 8(1) and
an exparte judgment under Order 9 rule 11(2)

Order 27 provides that any case in which a decree is passed ex parte against a defendant, he or
she may apply to the court by which the decree was passed for an order to set it aside, and if he
or she satisfies the court that the summons was not duly served, or that he or she was prevented
by any sufficient cause from appearing when the suit was called on for hearing, the court shall
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 for proceeding with the suit;

It is emphasized that under rule 12 Order 9 the Court’s discretion is wide unlike rule 27, where
the discretion is based on the two grounds. This distinction is discussed in Captain Phillip
Ongom vs. Catherine NyeroOwota SCCA 14 of 2001 in which the court held that there is
between the two rules a significant distinction which unfortunately is all too often overlooked
which is that the court has much more unfettered discretion under rule 12 than under rule 27 with
the result that the considerations under one are not the same as those applicable under the other.
This therefore means that Rule 12 has more grounds than rule 27 of Order 9.

Another distinction in the circumstances rule 12 as against rule 27 may be applied is eminently
made clear in the case of WameruvsNdiga (1982-88)1KAR 210 in which Hancox J.A., said the
main distinction between r.24 additionally differed to a different situation, r.10 applied only
where the judgment had been passed pursuant to any of the preceding rules of the order which
provided inter alia for setting down of the suit exparte. In summary that distinction is that rule 12
applies to applications in which the order/judgment sought to be set aside or varied was passed
by reason of the defendant failure to file a defense while rule 24 comes into play where the order
or judgment challenged arose out of Defendants physical failure to appear in court.

The discretion under rule 12 to set aside is intended to be exercised to avoid injustice or hardship
resulting from accident, inadvertence, or excusable mistake or errors, but is not designed to assist
a person who has deliberately sought, whether by evasion or otherwise, to abstract or delay the
cause of justice. In Patel v Cargo Handling Services (1974) EA 75 the stated that the court will
not usually set aside the judgment unless it is satisfied that there is a defense on the merits. In
this respect defense on the merits does not mean, in my view, a defense that must succeed, it
means “a friable issue” that is an issue which raises a prima facie defense and which should go to
trial for adjudication.

The Court must determine whether, in light of all the facts and circumstances, both prior and
subsequent, it would be just and reasonable to set aside or vary the judgment, if necessary, upon
terms to be imposed. This was emphasized in Jesse Kimanivs McConnell &Anor (1966) EA 547
at 555F.

As a matter of fact, good defense should be demonstrated by an Applicant who is seeking to set
aside a default judgment and not merely alleged.

It is established that exparte judgments that is judgments preceded by a hearing of evidence in

the absence of the defendant who was served but not appear are set aside pursuant to Order 9 rule
27 of the CPR. The Applicant must show that summons had not been duly served or that he or
she was prevented by sufficient cause from physically appearing when the case came on for
hearing. In Captain Phillip Ongom vs Catherine Nyero Owota the Court held that it was evident
from rule 27 that once the defendant satisfies the court on either ground, then the court is under
duty to grant the application and make the order setting aside the exparte decree, subject to any
conditions the court may deem fit.

For the court to impose when granting an order of setting aside depends on the circumstances of
each case such as a mistake of counsel even when it is negligent, ignorance of procedure by
unrepresented litigants, illness by a party have all been accepted as constituting sufficient cause,
but a failure to instruct an Advocate was rejected as not amounting to sufficient cause. In Miltha
V Ladak (1960) E.A 1054 it was held inter alia that the defendant was not presented by sufficient
cause” but by circumstances of his own making incemely, withdrawing instructions and failing
to comply other than condition upon which a postponement was granted. The Appeal was
dismissed.

It has been stated that the standard of proof under rule 12 is much lower because there is
unfettered discretion compared to the standard of proof under rule 27 which is higher because
there is limited discretion to grant the application. Accordingly, filing an application under one
instead of another will not be a mere technicality curable by amendment under article 26 but will
be fatal. In Kaweesi Agro Projects v Greenland Bank Limited (MA.68 of 2003) it was held that
rule 9(now rule12) requires a much lower standard of proof than the Applicant and
concomitantly give the court unfettered discretion to grant application.

It is settled law that a consent judgment is treated as a fresh agreement between the parties to the
suit thus consent judgment can only be avoided or set aside on any ground on which ordinary
contracts are avoided. This was stated by the East African Court of Appeal in the case of Hirani
vs Kassam (1952)19 EACA 131 in which it adopted the following passage from Seton on
Judgments and Orders 7th EdnVol 1, p124. “Prima facie, any order made in the presence and
with the consent of counsel is binding on all the parties to the proceedings or action and on those
claiming under them. ….and cannot be varied or discharged unless obtained by fraud or
collusion or by an agreement contrary to the policy of the court or if consent was given without
sufficient material facts, or in misapprehension or in ignorance of material facts or in general for
a reason which would enable the Court to set aside an agreement”

The consent judgment is set aside pursuant to the inherent powers of Court under section 98 of
the CPA or the inherent powers of the Court of Appeal or Supreme Court and this emphasized in
the case of Livingstone Sewanyana v Martin Aliker Civil Appeal 4 of 1991(SC).

Consent judgment are also set aside pursuant to order 9 rule 12 that is to say the rule has been
held to confer wide discretion to court to set aside judgments to which it applies. However, the
wide discretion under that rule does not apply if the judgment sought to be set aside is a consent
judgment. This is because it is settled law that a consent judgment is only interfered with in
limited circumstances. In Neale v Gordon Lennox (1902) AC 465 the plaintiff in an action for
defamation of character had authorized her counsel to consent to a reference on condition that all
imputations on her character were publicly disclaimed in Court. Her counsel did not make the
limitations of his authority to counsel for the defendant. Both agreed to refer the action without
any disclaimer of imputation. It was held that the counsel had exceeded authority and the
reference was set aside.

Applications to set aside or review consent judgments must be filed early. In Muyodi v Industrial
and Commercial Development (2006) EA 243, Eight months passed before filing application to
set aside the consent judgment. Eight months delay was held unreasonable.