FIRM B4 WORKSHOP 2

TASK A (I)

O.18 r 5A Civil Procedure (Amendment)Rules, 2019 provides for

witness statements and states that the evidence of a witness
shall consist of a witness statement which shall be filed after
the scheduling conference on the direction of the trial judge
served upon the opposite party.

Witness Statement of Plaintiff;

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

(LAND DIVISION)

CIVIL SUIT NO. 42 OF 2024

FESTO
KYOHEIRWE===============================PLAI
NTIFF

VERSUS

JOHN
MAGOBA===============================DEFEND
ANT

WITNESS STATEMENT OF FESTO KYOHEIRWE (PW1)

I, FESTO KYOHEIRWE of C/o M/s Batte & Co. Advocates P.O.

Box 3762, Kampala, do solemnly swear and sincerely state on
oath as hereunder;

1. That I am a male adult Ugandan of sound mind.

2. That on 19th September, 2007, he purchased 2.5 acres of

land to be subdivided from Kyadondo block 178, plot 539 at
Manyangwa from Paul Francis Sebwana at a cost of Ug Shs.
55,000,000 (Fifty-five million Uganda shillings). (A copy of the
memorandum of sale is attached hereto marked annexture “A”
3. That before the purchase, I made a search and found that
the land was free from any encumbrances.

4. That after purchase, Paul Francis Sebwana processed a

subdivision and had the title transferred to my names. (A copy
of the certificate of title is attached hereto marked annexture
“B”)

5. That in November, 2024, the defendant brought some

workers on the said land who started tilling part of the land.

6. That I made a complaint to police at Kansangati Police

station vide SD 43/3/8/2024. The defendant appeared at police
and he claimed to have purchased the land from Paul Francis
Sebwana who stated at police that he had previously intended
to sell the land to the defendant but he paid a deposit and
failed to pay full amount which prompted him to look for other
buyers and later found the plaintiff.

7. That I fenced off the land with barbed wires, however the
defendant has continued to trespass on the said land.

8. That whatever is stated herein is true and correct my

knowledge and belief.

STATEMENT made at Kampala

By the said:

FESTO KYOHEIRWE

………………..…………………………………

WITNESS

This 11th day of January, 2025.

Drawn & filed by:

M/s Batte & Co. Advocates

P.O. Box 3762, Kampala.

Defendant’s witness statement

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

(LAND DIVISION)

CIVIL SUIT NO. 42 OF 2024

FESTO
KYOHEIRWE===============================PLAI
NTIFF

VERSUS

JOHN
MAGOBA===============================DEFEND
ANT

WITNESS STATEMENT OF JOHN MAGOBA (DW1)

I, John Magoba C/o M/s Lukwago & Co. Advocates plot 78, Kira
Road media plaza Opp City oil P.O. Box 980, Kampala do
solemnly swear and sincerely state on oath hereunder:

1. That I am a male adult Ugandan of sound mind.

2. That on 9th May, 2007, I purchased 2.5 acres of land to be

subdivided from Kyadondo block 178, plot 539 at Manyangwa
from Paul Francis Sebwana and I deposited half of the purchase
price. (A copy of the of sale agreement is attached hereto
marked annexture “A”)

3. That the sale agreement indicated that the ascertained and

inspected area was to be surveyed first before payment of the
balance that was required.
4. That since 2007, Paul Francis Sebwana declined to produce
his surveyor for purposes of surveying the land and all efforts to
produce another surveyor were frustrated as they were chased
from the suit land.

5. Upon execution of the sale agreement, I took vacant

possession by planting seasonal crops which were destroyed by
the plaintiff after purchasing the land in the same year 2017. (A
copy of the of photographs of seasoned crops is attached hereto
marked annexture “B”)

6. That on several occasions, the plaintiff and Paul Francis

Sebwana were summoned to appear before the area LC1
committee in vain.

7. That I have never received any notice of intention to sue

from the plaintiff and I have not in any way inconvenienced the
plaintiff.

8. That whatever is stated herein is true and correct to the best

of my knowledge and belief.

STATEMENT made at Kampala,

By the said:

JOHN MAGOBA

………………..…………………………………

WITNESS

This 11th day of January, 2025.

Drawn & filed by:

M/s Lukwago & Co. Advocates

Plot 78 Kira Road

Media Plaza Opp City oil

P.O. Box 980, Kampala.

O.11A r 7(2) Civil Procedure (Amendment)Rules, 2019

Plaintiff’s Trial Bundle

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

(LAND DIVISION)

CIVIL SUIT NO. 42 OF 2024

FESTO
KYOHEIRWE===============================PLAI
NTIFF

VERSUS

JOHN
MAGOBA===============================DEFEND
ANT

PLAINTIFF’S TRIAL BUNDLE

NUMBE CONTENT P EXHIBIT PAGES

1. A Certificate of title Pexh 1 1

2. Memorandum of sale of Land Pexh. 2 2-3

3. A complaint to police Pexh 3 4

4. Land search form Pexh. 4 5-6

DATED at Kampala this 11th day of January, 2025.

__________________________

M/S Batte & Co. Advocates

(Counsel for the Plaintiff)

Drawn & filed by;

M/s Batte & Co. Advocates

P.O. Box 3762, Kampala.

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

(LAND DIVISION)

CIVIL SUIT NO. 42 OF 2024

FESTO
KYOHEIRWE===============================PLAI
NTIFF

VERSUS

JOHN
MAGOBA===============================DEFEND
ANT

DEFENDANT’S TRIAL BUNDLE

NUMBER CONTENT P EXHIBIT

PAGES

1.

A sale agreement Pexh. 1

2. A copy of photographs of seasoned crops Pexh. 2

2-3
DATED at Kampala this 11th day of January, 2025.

__________________________

M/S Lukwago & Co. Advocates

(Counsel for the Defendant)

Drawn & filed by;

M/s Lukwago & Co. Advocates

Plot 78 Kira Road

Media Plaza Opp City oil

P.O. Box 980, Kampala.

O.12 CPR

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

(LAND DIVISION)

CIVIL SUIT NO. 42 OF 2024

FESTO
KYOHEIRWE===============================PLAI
NTIFF
 VERSUS

JOHN
MAGOBA===============================DEFEND
ANT

JOINT SECHEDULING MEMORANDUM

PLAINTIFF’S ADDRESS: M/S Batte & Co. Advocates

P.O. Box 3762, Kampala.

PLAINTIFF’S SUMMARY OF THE CASE

That the Plaintiff is a male adult Ugandan.

That on 19th September, 2007, he purchased 2.5 acres of land

to be subdivided from Kyadondo block 178, plot 539 at
Manyangwa from Paul Francis Sebwana at a cost of Ug Shs.
55,000,000 (Fifty-five million Uganda shillings). After purchase,
Paul Francis Sebwana processed a subdivision and had the title
transferred to the plaintiff’s names. However, in November,
2024, the defendant brought some workers on the said land
who started tilling part of the land.

The plaintiff made a complaint to police at Kansangati Police

station vide SD 43/3/8/2024. The defendant appeared at police
and he claimed to have purchased the land from Paul Francis
Sebwana who stated at police that he had previously intended
to sell the land to the defendant but he paid a deposit and
failed to pay full amount which prompted him to look for other
buyers and later found the plaintiff. The plaintiff fenced off the
land with barbed wires, however the defendant has continued to
trespass on the said land.

DEFENDANT’S ADDRESS: M/S Lukwago & Co. Advocates

Plot 78 Kira Road

Media Plaza Opp City oil

P.O. Box 980, Kampala.

DEFENDANT’S SUMMARY OF THE CASE

That the Plaintiff is a male adult Ugandan.

That on 9th May, 2007, the defendant purchased 2.5 acres of

land to be subdivided from Kyadondo block 178, plot 539 at
Manyangwa from Paul Francis Sebwana where the defendant
deposited half of the purchase price. His sale agreement
indicated that the ascertained and inspected area was to be
surveyed first before payment of the balance that was required.

Upon execution of the sale agreement, the defendant took

vacant possession by planting seasonal crops which were
destroyed by the plaintiff after purchasing the land in the same
year 2017. That on several occasions, the plaintiff and Paul
Francis Sebwana were summoned to appear before the area LC1
committee in vain.

AGREED FACTS

Both parties purchased 2.5 acres of land to be subdivided from

Kyadondo block 178, plot 539 at Manyangwa from Paul Francis
Sebwana.

ISSUES FOR COURT’S DETERMINATION

1. Whether the parties are the rightful owners of the said land?

2. Whether the plaintiff is a Bonafide purchaser for value of the

said land?

3. What remedies are available to the parties?

PLAINTIFF’S LIST OF WITNESSES

a) The Plaintiff

b) Paul Francis Sebwana

c) Obed Mwebesa

d) Any other with leave of court

PLAINTIFF’S LIST OF DOCUMENTS

a) A Certificate of title

b) Memorandum of sale of Land

c) A complaint to police
d) Land search form

e) Any other with leave of court

PLAINTIFF’S LIST OF AUTHORITIES

a) The 1995 Constitution of the Republic of Uganda 1995

(amended)

b) The Civil Procedure Act Cap 282

c) Civil Procedure Rules SI 71-1

d) The Magistrates Court Act Cap 19.

e) The Contracts Act Cap 284

f) The Sale of Goods Act cap 82

g) The Evidence Act Cap 8.

h) Any other with leave of court.

DEFENDANT’S LIST OF WITNESS

a) The Defendant

b) Paul Francis Sebwana

c) Any other with leave of court

DEFENDANT’S LIST OF DOCUMENTS

a) A sale agreement

b) A copy of photographs of seasoned crops

DEFENDANT’S LIST OF AUTHORITIES

a) The 1995 Constitution of the Republic of Uganda 1995

(amended)

b) The Civil Procedure Act Cap 282

c) The Sale of Goods Act cap 82

d) Contracts Act cap 284

e) Civil Procedure Rules. S.I 71-1

f) The Evidence Act Cap 8

g) Any other with leave of court

DATED at KAMPALA this 11th day of January, 2025.

…………………………………….
……………………………..

Counsel for the Plaintiff Counsel

for the Defendant

M/s Batte & Co. Advocates M/s

Lukwago & Co. Advocates

JOINTLY PREPARED BY:

M/s Batte & Co. Advocates

P.O. Box 3762, Kampala.

&

M/s Lukwago & Co. Advocates

Plot 78 Kira Road

Media Plaza Opp City oil

P.O. Box 980, Kampala.

TASK A (ii)

By way of a legal opinion, illustrate how issues are framed,the

burden of proof and standard of proof in civil suits.

M/s Batte & co. Adv

Plot 14, Kampala r

P. O box 422 kpla

Date, 15. 01.23

Dear sir/madam

Re: Legal opinion on how issues are framed, burden of proof

and standard of proof
In civil law, an issue is a disputed question that is the focus of a
civil case's disagreement, argument, or decision. The court
decides the case in favor of one side or the other based on the
issue.

Framing issue is the process of defining the points of

contention between the parties in a case. It's a crucial part of a
civil trial and is considered to be one of the most important
steps in the process.

Framing of issues is provided for under order 15 rule 1 and 3 of

the Civil Procedure rules S.1 17-1.

ORDER 15 RULE 1 FRAMING OF ISSUES

Order 15 rule 1(1), Issues arise when a material proposition of

law or fact is affirmed by one party and denied by other.

Order 15 rule 1(2), when the propositions are those

propositions of law or fact which a plaintiff must allege in order
to show a right to sue or a defendant must allege in order to
constitute a defence.

Order 15 rule 1(3), Each material proposition affirmed by one

party and denied by other shall form the subject of a distinct
issue.

Order 15 rule 1(4), Issues are of two kinds: issues of law and
issues of fact.

Order 15 rule 1(5),At the of the suit the court shall, after
reading the pleadings, if any, and after such examination of the
parties or their advocates as may appear necessary, ascertain
upon what material propositions of law or fact the parties are at
variance, and shall thereupon proceed to frame and record the
issues on which the right decision of the case appears to
depend.

Order 15 rule 1(6), Nothing in this rule requires the court to

frame and record issues where the defendant at the hearing of
the suit makes no defence, or where issue has been joined upon
the pleadings.

ORDER 15 RULE 3 MATERIALS FROM WHICH ISSUES MAY BE

FRAMED.

Order 15 rule 3, provides that the court may frame the issues
from all or any of the following materials-
(a)allegations made on oath by the parties, or by any persons
present on their behalf, or made by the advocates of the
parties;

(b)Allegations made in the pleadings or in answers to

interrogatories delivered in the suit; and

(c)The contents of documents produced by either party.

However, Court can’t raise its own matters for litigation and
adjudicate them. It is for the parties to raise the matters for
trial with the guidance of court. The questions for trial are to
be raised by the parties with assistance of court. In Darcy v
Jones (1959) EA 121the appellant argued that the trial
magistrate was wrong in framing and subsequently deciding on
issues based on the allegations introduced by the reply. Court
Held that –(iii) in view of the provisions of Order 15 the court
not merely has a right but is under a duty when framing issues
so to frame them as to ensure that no party is precluded from
obtaining relief to which he is entitled by reason of some
technical error in his pleadings. Therefore, whereas the parties
may set out issues for determination by the court, the court is
not bound by such issues and may modify or reframe the issues
provided it gives an opportunity to the parties to address it on
the modified issues.

Order 15 rule 5provides for court’s power to amend or strike

out issues. In Oriental Insurance Brokers Ltd V Transocean Ltd
CA it was held that where a court amends issues which the
parties had agreed upon, it is necessary to give the parties the
right to adduce further evidence or address the court on the
amended issues.

In Darlington Sakwa AND Anor. V Electoral Commission & 44

Others (Constitutional Petition No.8 of 2006) [2006] it was
held that, where the parties had closed pleadings and submitted on
agreed issues, the court, still, has to consult the parties and give them
a hearing, if they so wish, as held in the case of Oriental Insurance
Brokers Ltd vs. Transocean (U) Ltd Civil Appeal It is not disputed that
the trial proceeds on issues which are in dispute. The parties must
know the issues which require proof so that they adduce the required
evidence.

Sufficiency of the framed issues.

In the case of Okello Johnson vs Lalam Angela (HCCA No.013 0f
2019 ) civil appeal it was held that issues submitted by one party
should not be mechanically adopted by the court as it is primarily the
duty of the court to frame the issues in the case. Issues framed for
arriving at the right decision of the case and pin point the real and
substantial points if there are pleadings and sufficient evidence is
available on record. Therefore, the issues will be sufficient if they are
framed in line with the facts at hand. Basing on our facts at hand the
issues framed by court are sufficient.

BURDEN OF PROOF AND STANDARD OF PROOF

Burden of proof

In civil proceedings, the burden of proof lies upon he who alleges.

Section 101 of the Evidence Act, Cap 8 provides that; “(1) Whoever
desires any court to give judgment as to any legal right or liability
dependent on the existence of facts which he or she asserts must
prove that those facts exist.

The rules relating to burden of proof and standard of proof in a suit

are set out in Part IV of the evidence act.

The law of evidence aids a party who wants to be believed in what he

alleges. The law of evidence therefore requires the alleging party to
prove his assertions before he can be believed. It is a common law
principle that whoever asserts must prove, but he who denies needn’t
prove.

The provisions of Section 101 clearly highlight particulars in this

requirement. Section 101 states;

Whoever desires any court to give judgment as to any legal right or

liability dependent on the existence of facts which he or she asserts
must prove that those facts exist.

This provision is among the rules that have been prescribed to help in
the establishment of the liability of parties. This position was affirmed
in Simon Musoke Verses Uganda where it was held that the Burden of
Proof is so that he who asserts must prove and if he asserts and does
not prove then he must fail.

Section 102, makes further provision for burden of proof. The burden
of proof for suit/ proceeding lies on that person who would fail if no
evidence at all were given on either side. If the prosecution has made
out a prima facie case, if the accused does not say anything, he will be
at a loss therefore, he has the burden to prove otherwise. This
perhaps explains why in criminal cases, the accused person does not
need to say anything until after the ruling of a prima facie case has
been made against him or her.

The facts disclose that the suit is one dealing with land matters
pertaining to issues of ownership, therefore recourse should also be
made to Section 110 imposes the burden of proving whether a person
is not the owner of anything which he or she is shown to be in
possession of, on the person who affirms that he or she is not the
owner.

The court of Appeal in Cooperative Centrale Raiffeisen –

Boerenleenbank Ba, Singapore Branch V MotorolaElectronics Pte Ltd
[2011] 2 SLR 63 ( “ Rabobank”) had clearly held that pursuant to ss
103 and 105 of the Act, the legal burden of proof is placed on the
party who asserts the existence of the fact in the issue or relevant
fact.

Rhesa shipping Co SA v Edmunds [1985] 1 WLR 948 Where Lord

Brandon said: This is especially so when it is open to the judge to say
simply that the evidence leaves him in doubt whether the event
occurred or not, and that the party on whom burden of proving that
the event occurred lies has therefore failed to discharge such burden.

Section 106 of The Evidence Act Cap 8 provides that in civil

proceeding, when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon that person.

Standard of proof

Standard of proof is based on a standard of probabilities. The

standard of proof in civil cases is on a balance of probabilities
and it need not be proved beyond reasonable doubt.

In a trial, a fact that is asserted must be proved. A fact is only

proved if it meets the standard of proof, that is, “the degree of
persuasion which the tribunal must feel before it decides that
the fact in issue did happen”. The process as to whether or not
a fact to be proved has happened was neatly described by Lord
Hoffmann in the case of In re B(Children) [2009] 1 AC at [2]
per Lord Hoffmann.

Further, in the case of Nsubuga Verses. Kavumait was held that

in civil cases the burden lies on the plaintiff to prove his or her
 case on the balance of probabilities. Section 101 (1)provides
that whoever desires any court to give judgment as to any legal
right or liability dependent on the existence of facts which he
or she asserts must prove that those facts exist. It is stated that
in civil cases the standard of proof is one based on probabilities
unlike in criminal matters where the case is required to be
proved beyond reasonable doubt.

Legal opinion

In civil cases therefore, the burden of proof is on the claimant,

and the standard required of them is that they prove the case
against the defendant “on a balance of probabilities”. This is
the threshold is lower than in criminal cases, requiring
evidence that tilts the scale in favor of the plaintiff.

……bbkk…………

Legal Assistant

M/s Battee and co. Advocates

TASK B (i)
Brief facts
The Judicial Officer handling the suit in was a classmate and
roommate to the counsel for the defendant while they were
perusing their undergraduate and post graduate studies at LDC
Issue
What is the course of action in the circumstances and what is
the procedure?
law applicable
1. The Constitution of the Republic of Uganda, 1995 as
amended.
2. The Constitution (recusal of judicial officers) (practice)
directions, 2019
3. Case law
Resolution
Article 28 of the Constitution provides for a right to fair hearing where
by an accused person is entitled to a fair, speedy and public hearing
before an independent and impartial court or tribunal established by
law.
For recusal to happen, there should be evidence of bias from the
judicial officer. The types of bias include; actual bias, apparent bias
and imputed bias
Rule 4 of the constitutional (recusal of judicial officers)
(practices) directions 2019 recusal means the act of abstaining
from participation on an official action sUch as a legal
proceeding due to conflict of interest of the presiding judicial
officer.
Recusal as per the Constitution (recusal of judicial officers) (practice)
directions, 2019 is defined as an act of abstaining from participation in
an official action such as a legal proceeding due to conflict of interest
of the presiding judicial officer. (See Rule 5 of The Constitution
(recusal of judicial officers) (practice) directions, 2019)
A judicial officer may, on application by any of the parties or on
his or her own motion recuse himself or herself from any
proceedings in which his or her impartiality will reasonably be in
question. (Rule 5)
Rule 7 provides for the circumstances under which a party to
the proceedings may apply to court for a judicial officer to
recuse himself or herself.
In the matter of Application for recusal of Owiny-Dollo CJ
Miscellaneous Application No. 3 of 2021, Court held that; it
is unmistakably clear that the locus to move Court for the
recusal of a judicial officer is exclusively vested in 'any
party to the proceedings.' Under rule 7(1)(a) is to the effect
that where the judicial officer has an interest in the
subject matter or has a relationship with any person who
is interested in the matter. And under 1(b) where a
judicial officer has background information or experience
such as the judicial officers prior work as a lawyer.

In relation to the facts the judicial officer handling the

suit was a classmate and roommate to counsel for the
defendant while they were pursuing their studies which
implies that there is a likelihood of conflict of interest and
therefore counsel for the plaintiff should apply for the
judicial officer to recuse himself or herself from the
proceedings of the suit.
The procedure of the application is provided for under Rule 8.
Subsection (1) is to the effect that one who seeks for recusal of
a Judicial officer shall request the judicial officer to recuse
himself or herself by letter copied to all the parties and
the registrar of the Court or orally in open court in the
presence of the parties.
The Judicial officer against whom recusal is sought is then
given an opportunity to respond to the concerns raised by
the party.(see sub rule 2)
In an instance where the Judicial officer recuses him or
herself, the parties are notified and an entry is made on
record and the file returns to the registry for reallocation
to another judicial officer. (See sub rule 3)
In instances where the judicial officer declines to recuse him
or herself from the matter, the reasons for declining ought
to be noted on the record and the matter then proceeds
for hearing. And when a party is dissatisfied with this decision
by the Judicial Officer of not recusing him or herself, the
dissatisfied party shall state his or her reasons and the matter
shall proceed. (See sub rules 4 and 5)
Rule 9 of the Constitution (recusal of judicial officers)(practice)
directions, 2019 provides that any appeal arising out of the
failure to grant an application for recusal shall be made
after the matter has been determined.
In conclusion, in this case that the Judicial Officer was a
classmate and a roommate to the counsel for the defendant, the
plaintiff shall apply either through writing or orally request the
judicial officer handling this matter to recuse him or herself
from the matter.

TASK B.(ii)
ISSUE 2. What is the process of reopening the case by the
plaintiff to tender in the said agreement?
Article 126(2)(e) of the Constitution of the Republic of Uganda
1995 as amended provides that courts shall administer Substantive
Justice without undue regard to technicalities.
O.6 r 2 of the CPR states that every pleading shall be accompanied
by a brief summary of evidence to be adduced, a list of the witnesses, a
list of documents and a list of authorities to be relied on, except that
an additional list of authorities may be provided late with the leave of
Court.
O.7 r 18 of the CPR provides th u at a document which ought to be
produced with a plaint and which is not produced shall not be
produced without leave of court, be received in evidence on his or her
behalf at the hearing of the suit.
Procedure.
O.7 r 19 of the CPR.
Applications under this order shall be by summons in Chambers.
Section 98 of the CPA grants the court the inherent powers to make
such orders as may be necessary for the ends of Justice or to prevent
abuse of the process of the Court.
Application for leave to reopen a case will be by Notice of motion
supported by a valid Affidavit in support. Under Order 52 rule 1
and 3 of the CPR.
In Ericson v Uganda Revenue Authority (App. No.67 of 2021)
The court stated that for a case to be re-opened.
1. The evidence sought to be adduced is one that the applicant has
come upon after exercise of due diligence which was not within the
knowledge of the applicant at the time of the hearing of the case.
2. The grant of the application shall not prejudice the opposite party’s
defence.
3. That it was not a failure to do due diligence of counsel and as such
was a genuine mistake or error on the part of the lawyer that the court
may overlook in interest of justice.
4. The evidence is not intended to fill any gaps in evidence of the
applicant.
ISSUE 5 what are the next steps after the defense counsel has just
completed examining their last witness?
Hearing written or oral submissions from both the plaintiff counsel and
the defence counsel.
Setting date for delivery of judgment

Task B part 3

According to the civil procedure rules Order 17 rule (1) provides

The court may, if sufficient cause is shown, at any stage of the suit grant
time to the parties, or to any of them, and may from time to time adjourn
the hearing of the suit.

According to Order 17 r (2) (a) when the hearing of evidence has once
begun, the hearing of the suit shall be continued from day to day until all
the witnesses in attendance have been examined, unless the court finds
the adjournment of the hearing beyond the following day to be necessary
for reasons to be recorded
According to O.17 r 1 (1) provides that the court may if sufficient
cause is shown, at any stage of the suit grant time to the parties or to any
of them and may from time to time adjourn the hearing of the suit. In the
circumstances where the hearing can’t take place such as due to lack of
witnesses, new matters arising, having personal problems, sickness of
counsel or parties etc. the law provides for adjournment of hearing on
application to the court showing sufficient cause.

The court has discretion to grant or refuse the adjournment but must be
done judiciously and reasonable manner. The rationale is that justice
requires a party to be accorded some time to get themselves ready if any
have genuine cause for not being ready.

In the case of Shabani vs. Karada Co. Ltd (1973) EA 497 It was held
that an adjournment can’t be granted as of right but can be granted for
sufficient cause. It involves the exercise of discretion and this must be
done judicially.

In the case of Yahaya Kiriisa vs. A.G & Anor SCCA No. 7/94Manyindo
DCJ held that it cannot be right for a court to force an advocate to argue
a matter in which he or she is ill prepared on not prepared at all. That
will be a negation of justice to his client

In the case of Salongo vs. Nantengolola (1976) HCB 290 held that if
a new matter arises at the trial which catches a party unaware, the party
is entitled to an adjournment to prepare his case to meet this new
matter.

In the case of Acaali Manzi vs. Nile Bank Ltd CS No. 87/93-1994 1
KALR 123, it was held that it was now accepted that applications or
adjournment by letter would not be accepted under normal
circumstances. In the case of Sherif Yusuf vs. Phillip Kioko (1951) 24
(2) K.L.R. 75 held that a court cannot grant an adjournment at a
request by letter of a plaintiff who does not appear.
In the case of Obiga Kania vs. Electoral Commission & Anor EPA
No.4/2011 Justice Murangira stated that the petition was given the last
adjournment and was fixed for hearing in the presence of the petitioners.
That the petitioner opted not to come with a lawyer to represent him, but
that he was not ready to proceed with the petition. That there is nothing
on the court record to show the whereabouts of the counsel for the
petitioner. That the firm representing the petitioner have other lawyers
in the firm but did not find it prudent to send one to prosecute the
petition in court. That the petitioner’s failure to prosecute his petition
when it was the last adjournment offends O.9 r 22 and O.17 R 4 & 5
CPR.

Procedure

Application can be made orally at the trial. Where the judge is absent,
the parties go to the registrar to adjourn their case or they can set
another hearing date by consent and file a consent form especially where
the judge has not given his or her diary to the registrar or clerk.

Default to appear

Order 17 rule 4 provides that where any party to a suit to whom time
has been granted fails to produce his or her evidence, or to cause the
attendance of his or her witnesses, or to perform any other act necessary
to the further progress of the suit, for which time has been allowed, the
court may, notwithstanding that default, proceed to decide the suit
immediately.

Where on the day to which the hearing of the suit is adjourned, the
parties or any of them fails to appear, the court may proceed to dispose
of the suit in one of the modes under O.9 r 22 of the Civil Procedure
Rules provides that where the defendant appears, and the plaintiff does
not appear, when the suit is called on for hearing, the court shall make
an order that the suit be dismissed, unless the defendant admits the
claim, or part of it, in which case the court shall pass a decree against
the defendant upon such admission, and, where part only of the claim has
been admitted, shall dismiss the suit so far as it relates to the remainder

ISSUE 5 task v what are the next steps after the defence counsel
has just completed examining their last witness

CLOSING OF EVIDENCE

Once all parties have completed the examination and cross-examination

of witnesses, the court will close the evidence phase of the trial. No
further evidence can usually be introduced unless the court allows it for
specific reasons.

SUBMISSIONS

After all the parties have called witnesses[1], the case is closed and they
have to make their submissions to the Court. The submissions may be
either oral or written. Usually, the plaintiff begins and then the defendant
submits later. Order XVIII rule 1 of the Civil Procedure Rules on Hearing
of the Suit and Examination of Witnesses provides for the Right to begin
— This rule establishes which party has the right to make the first oral
submission after evidence is closed.

The purposes of submissions are to enable parties or their advocates

point out to court the material facts which each party has established in
his favour, the strength on the party’s case both as to the evidence
adduced and the applicable law, and to appeal to the court to find for
such a party. They are also used to point the weaknesses on an
opponent’s case.

Submissions are the last opportunity of counsel to communicate directly

with the court.

With respect to written submissions, failure to file written submissions

means that the court should proceed to decide the case in accordance
with Order 17, rule 4 of the Civil Procedure Rules.
DELIVERY OF JUDGMENT

This is provided by Order 21 rule 1 of the Civil Procedure Rules

provides for Judgment. The court must pronounce judgment after
evidence is closed and submissions are made. At the conclusion of the
hearing, the court gives it Judgment. In suits where a hearing is
necessary, the court, after the case has been heard, shall pronounce
Judgment in open court, either at once or on some future day, of which
due notice shall be given to the parties or their advocates.
Order 21 rule
A judgment is the official and authentic decision of a court of justice
upon the respective rights and claims of the parties to an action or suit
litigated and submitted to its determination; the final decision of the
court resolving the dispute and determining the rights and obligations
of the parties.

In the context of interlocutory applications, the court issues an order.

An order is an interlocutory decision. As a general rule, the judge who
heard the matter must make a Judgment and such judge shall read
such Judgment.

EXECUTION OF DECREES AND ORDERS

Pursuant to ORDER XXII, if a party is entitled to relief, the party

realises the fruits of judgment by enforcement of the court's decree. A
judgment can be executed for recovering money or property ordered by
the court.
[1] The immediate step after examination of the last witness by defense, the plaintiff’s
counsel has the opportunity to cross-examine the last witness to test the reliability of
the evidence of such witness.