FAILURE TO SUMMON OR INVOLVE PARTIES IN THE CRAFTING OF A CONSENT AGREEMENT MAY NOT BE ILLEGAL, BUT IT IS IRREGULAR —AND CAN RESULT IN THE ORDER BEING SET ASIDE TO PREVENT MISCARRIAGE OF JUSTICE.

Brief of the case Ssekyansanku & 12 Others v Aronda (Miscellaneous Application 196 of 2024) [2025] UGHC 146 (4 April 2025)

Area of law: Civil Procedure

Topic: Review and Setting Aside of Court Decrees and Orders

Introduction

The High Court has reaffirmed that applications for review and setting aside of court decrees and orders—including consent judgments—are governed by Section 82 of the Civil Procedure Act, Cap 71 and Order 46 Rules 1 and 2 of the Civil Procedure Rules.

The court highlighted the principle from Hirani v Kassam (1952) EA 131:

A consent order is binding unless obtained by fraud, collusion, mistake, or misapprehension, or if it violates court policy or lacks material facts.

The court reiterated from Adonia v Mutekanga [1970] EA 429 and Re Nakivubo Chemists (U) Ltd [1979] HCB 12 that non-parties may also be aggrieved if an order affects them, and thus entitled to seek review.

Facts

The 1st to 7th applicants were granted a representative order to represent 317 people allegedly affected by interim and consent orders issued in Mubende H.C. Misc. Apps. No. 18 & 19 of 2022, regarding land in Kyankwanzi District.

The interim order (10 Feb 2022) was issued without a locus visit and affected people who were not parties to the suit, including the applicants and those they represent who were in possession of the land.

Following the order, the respondent, with the aid of police and UPDF, allegedly evicted the applicants and destroyed crops and property.

The consent temporary injunction (5 July 2022) was entered without the applicants’ participation or consent and applied to land beyond that occupied by the 8th to 14th applicants.

Applicants Argument

The applicants argued the consent order was wrongly endorsed as the status quo had already changed due to prior evictions, and that the consent was signed without proper authority or consultation.

Respondents Argument

The respondent denied the evictions, claiming the applicants misrepresented facts, that the consent was properly entered, and that the land measurements were clear.

Applicants Rejoinder

The 1st applicant in rejoinder contended the respondent’s affidavit is defective, the representative order applies to the current case, and that consent was entered fraudulently.

Court's Determination

The High Court reaffirmed that applications for review and setting aside of decrees or orders are governed by Section 82 of the Civil Procedure Act (Cap 71, formerly Cap 282) and Order 46 Rules 1 and 2 of the Civil Procedure Rules (CPR).

These provisions empower a court to review its own decisions in exceptional cases, thereby upholding the rule of law and judicial accountability, even after it has become functus officio.

Furthermore, the court clarified that grounds for review under Section 82 CPA and O.46 r.1 CPR include:

A mistake or error apparent on the face of the record.
Discovery of new and important evidence not available despite due diligence.
Any other sufficient reason.

The court highlighted the principle from Hirani v Kassam (1952) EA 131:

A consent order is binding unless obtained by fraud, collusion, mistake, or misapprehension, or if it violates court policy or lacks material facts.

Under Order 3 Rule 1 CPR, an advocate may act on behalf of a party unless shown to lack instructions. However, where it is not proven that a party consented, especially in sensitive matters, judicial discretion may warrant setting aside a consent as highlighted in Friedhelm Erwin Jost & Anor v ROKO Construction Ltd MA No. 0089 of 2021 (unreported).

Key Holding

The High Court set aside a consent temporary injunction entered in Misc. App No. 18 of 2022 because:

The 1st to 7th applicants, though not parties, were demonstrably aggrieved, having suffered evictions resulting from the order.
The 8th to 14th applicants, while represented by counsel, did not personally endorse the consent order, raising doubts about proper authorization.
The process of recording the consent was procedurally irregular, as the court failed to confirm consent from the affected parties personally.

Conclusion Consent judgments and orders are not immune from judicial scrutiny. The rule of law requires that all parties—especially those adversely affected—be given a fair opportunity to be heard. Courts will uphold substantive justice over procedural shortcuts, reaffirming that judicial discretion must be exercised to serve justice and protect rights.