Kimambo v Baluku (Revision Cause 10 of 2020) [2023] UGHCCD 248 (10 July 2023)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGAND AT FORT PORTAL REVISION CAUSE NO. 0010 OF 2020 (ARISING FROM SMALL CLAIM CASE NO. 0263 OF 2019) PHILBERT KIMAMBO :::::::::::::::::::::::::::::::::::::::: APPLICANT

BALUKU MUTHAHI :::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE VICENT WAGONA

VERSUS

RULING

- 1. The applicant brought this application under Article 28 of the 1995 Constitution and Rule 4 (4) of the Judicature (Small Claims Procedure) Rules, Section 14(20) (c), 17 and 33 of the Judicature Act seeking orders that: (a) the record of proceedings in Small Claims Case No. 0263 of 2019 be called and examined and revised and the orders therein set aside or quashed; (b) court exercises its supervisory powers and order for a re-trial; (c) costs of taking out the application be provided for. - 2. The application was supported by the affidavit of Philbert Kimambo, the applicant who deponed that the Respondent lodged a small claim case against him seeking to recover Ugx 3,672,000/= plus costs of the suit; that during hearing, the applicant was not given an opportunity to present documents by the trial magistrate who rejected them and also refused to allow time to bring more


documents; that his complaint to the Chief Magistrate was not handled. The application was opposed by the Respondent who contended that the applicant was accorded a right to a fair trial and allowed to present his witnesses.

*Representation and Hearing:*

- 3. The applicant was self-represented while the Respondent was represented by M/s Legal Aid Project. None of the parties filed submissions I have thus considered only the pleadings on file and the record of the lower court. - 4. *Issue:* Whether there are grounds for revision of small claim case no. 0263 of 2023.

RESOLUTION:

5. Civil Revision is provided for section 83 of the Civil Procedure Act which provides thus: *The High Court may call for the record of any case which has been determined under this Act by any magistrate's court, and if that court appears to have— (a) exercised a jurisdiction not vested in it in law; (b) failed to exercise a jurisdiction so vested; or (c) acted in the exercise of its jurisdiction illegally or with material irregularity or injustice, the High Court may revise the case and may make such order in it as it thinks fit; but no such power of revision shall be exercised— (d) unless the parties shall first be given the opportunity of being heard; or (e) where, from lapse of time or other cause, the exercise of that power would involve serious hardship to any person.*


- 6. The revision powers of the High Court are limited to where the magistrate's court exercise jurisdiction not vested in it; failed to exercise jurisdiction so vested it; and where that court acted in the exercise of jurisdiction vested in it with illegality or material irregularity or injustice. (See Misc. Application No. 0021 of 2015, Uganda Telecom Limited Vs. Adratere Oreste). - 7. In Civil Appeal No. 190 of 2013, Kibalama Mugwanya Vs. Butebi Investment Enterprises Ltd, court observed thus: *"Section 83 of the Civil Procedure Act gives the High Court power to revise the case which has been called for Revision on ground that the court appears to have exercised jurisdiction not in it in law, or failed to exercise jurisdiction so vested; or acted in the exercise of its jurisdiction illegally or with material irregularity or injustice. Upon such revision having taken place, the High court has discretion to make such order as it thinks fit however no such power of Revision shall be exercised unless the parties are given opportunity of being heard unless where from the lapse of time or some other cause the exercise of that power would involve serious hardship to any person."* - 8. In this case it appears that the application by the applicant to tender receipts in court was rejected by the trial magistrate. The trial magistrate observed at page 5 thus: *"defendant says his receipts show the total payment, but the receipts he has produced do not total up to the quoted sum of 11,015,000/=. defendant also says he made some petty payments to the claimant without any writing, but the claimant refutes this. Defendant has no proof of this fact".* This shows


that the defendant presented receipts but the same were not admitted by the trial magistrate.

- 9. I find that a refusal to admit evidence by a judicial officer with reasons given cannot amount to an exercise of a jurisdiction not vested in it in law, failure to exercise a jurisdiction vested in the judicial officer; or acting in the exercise of jurisdiction illegally or with material irregularity or injustice. I believe the question as to whether the rejection of the documents presented by the applicant was proper would be better investigated in an appeal and not an application for revision. - 10.I therefore find that this application is not proper before this court and accordingly reject and dismiss it with costs awarded to the Respondent.

It is so ordered.


Vincent Wagona

High Court Judge

FORT-PORTAL

DATE: 10/7/23