BAKAMPA BRIAN BARYAGUMA
MOBILE:
+256753124713 / +256772748300;
EMAIL: bakampasenior@gmail.com;
WEB
ADDRESS: www.huntedthinker.blogspot.com;
Kampala,
Uganda.
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Thursday, 12th March, 2026.
To:
The Principal Judge/Chairperson,
Judiciary Law Reform Committee,
Courts of Judicature,
High Court Building,
Plot 2, The Square,
P.O. Box 7085, Kampala, Uganda.
Your Lordship,
Re: Another Proposed
Amendment to the Civil Procedure Rules
In my letter addressed to you dated Monday, 23rd
February, 2026 and delivered to Your Lordship’s chambers on the same day, I proposed
amendments to the rules of civil procedure in the courts of judicature,
particularly concerning the time for filing affidavits in reply and mandatory
furnishing of security for costs (a copy
of the cover page of the letter is hereon attached).
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| The letter was duly served on the Principal Judge and Chief Registrar as confirmed by their stamps signifying receipt of it. |
On this occasion, however, I am urged to seek your indulgence to propose yet another amendment to The Civil Procedure Rules, Statutory Instrument 71–1 (hereinafter “the Civil Procedure Rules” or “the CPR”), concerning order 46, rule 1 (1) which to my mind is inconsistent with and ultra vires its parent section i.e. section 82 of the Civil Procedure Act, Cap. 282 (hereinafter “the CPA”) and is therefore null and void to the extent of the inconsistency.
Your Lordship, I contend that order
46, rule 1 (1) of the CPR is in excess of the
provisions of section 82 of the
CPA and is therefore ultra vires, illegal and unlawful. The
Civil Procedure Rules are delegated legislation which must conform to
the power granted and not conflict with the Act from which it originates (or
any other Act, for that matter). The rules are made under the CPA and that Act
permits unconditional exercise of review power (save for not having preferred
an appeal against the decision sought to be reviewed or no appeal from it is
allowed by the Act) under section 82
which states as follows–
82. Review.
Any person considering
himself or herself aggrieved—
(a) by a decree or order
from which an appeal is allowed by this Act, but from which no appeal
has been preferred; or
(b) by a decree or order
from which no appeal is allowed by this Act,
may apply for a review
of judgment to the court which passed the decree or made the order, and the
court may make such order on the decree or order as it thinks fit. (Emphasis is
in the original.)
It is trite law that where delegated legislation exceeds the
powers granted or conflicts with an Act, it is said to be ultra vires and null
and void; and this is exactly what order
46, rule 1 (1) of the CPR is: it is in excess of section 82 of the CPA by imposing
conditions on the exercise of review power which the Act from which it emanates
does not impose. The rule states–
ORDER XLVI—REVIEW.
1. Application for
review of judgment.
(1) Any person considering himself or herself aggrieved—
(a) by a decree or order
from which an appeal is allowed, but from which no appeal has been preferred;
or
(b) by a decree or order from which no appeal is hereby allowed,
and who from the discovery of new and important matter of evidence
which, after the exercise of due diligence, was not within his or her knowledge
or could not be produced by him or her at the time when the decree was passed
or the order made, or on account of some mistake or error apparent on the face
of the record, or for any other sufficient reason, desires to obtain a review
of the decree passed or order made against him or her, may apply for a review
of judgment to the court which passed the decree or made the order. (Emphasis
is in the original.)
The offending provision in the rule is the rider stating that: and who from the discovery of new and
important matter of evidence which, after the exercise of due diligence, was
not within his or her knowledge or could not be produced by him or her at the
time when the decree was passed or the order made, or on account of some
mistake or error apparent on the face of the record, or for any other
sufficient reason, desires to obtain a review of the decree passed or order
made against him or her,
The Interpretation Act, Cap. 2 forbids, in section 18 (4),
statutory instruments being inconsistent with their parent Acts. The section
states:
18. General provisions
relating to statutory instruments.
(4) Any provision of a statutory instrument which is inconsistent with
any provision of the Act under which the instrument was made shall be void to
the extent of the inconsistency. (Emphasis is in the original.)
I contend that to the extent that order 46, rule 1 (1) of the CPR imposes conditions on the
exercise of review power yet section 82 of
the
CPA does not impose such or any conditions at all on the exercise of
the power of review, the rule is inconsistent with and ultra vires the section
and is therefore null and void to the extent of the inconsistency, in light of section 18 (4) of the Interpretation
Act. The rule is ultra vires because the extra conditions it embodies
(i.e. that there is new and important evidence discovered that was previously
unavailable to the person applying for review, or that the court made mistakes
or errors in its record/decision) are illegal by virtue of them exceeding the
conditions principally determined and set by the parent Act. Section 82 of the CPA is very clear and
express in its terms and so in that regard is a mandatory provision of the Act
which order 46, rule 1 (1) of the
CPR is directly inconsistent with. Beyond reasonable doubt, order 46, rule 1 (1) is a clear
violation of section 82 and should
be found null and void by the Judiciary Law Reform Committee and the Rules
Committee.
Order 46, rule 1 (1) of the CPR is illegal since it is in more restrictive terms than section 82 of the CPA because the
former is not as wide as the latter. Unlike section 82 which is conditionless (save for not having appealed
against the decision sought to be reviewed or no appeal from it being allowed
by the Act), order 46, rule 1 (1)
imposes conditions on the exercise of review power, empowering this court to
review its own decisions only where there is new and important evidence
discovered that was previously unavailable to the person applying for review,
or that the court made mistakes or errors in its record/decision. Hence, because
of the restrictiveness of order 46, rule
1 (1), I contend that a court decision cannot be reviewed under it on
account of, for example, bias and prejudice on the part of a judicial officer.
This, to my mind, brings order 46, rule
1 (1) into sharp contrast with section
82, rendering its legality questionable insofar as it exceeds what the Act
stipulates. Clearly the rule fails to conform to the statute under which it is
made by exceeding the limits of authority conferred by the parent Act. This
makes the rule unjust.
Your Lordship, I have personally tasted the unjustness and indeed
harshness of this rule, in my still ongoing case, Bakampa Brian Baryaguma v.
Attorney General, Miscellaneous Application No. HCT-00-CV-MA-0911-2024
(hereinafter “Bakampa v. AG (2024)” that is pending ruling before Justice Teko
Isaac Bonny. Briefly, that is an application for review brought by notice of
motion under sections 82 and 98 of the CPA and order 46, rule 1 of the CPR
seeking, among others, an order quashing and setting aside a previous ruling in
Miscellaneous Cause No. 129 of 2021,
Bakampa Brian Baryaguma v. Attorney General, on ground that the
trial of the cause was unfair on account of bias by the trial Judge, resulting
in miscarriage of justice. It will be seen that I was
forced to travel beyond section 82 to section 98 of the CPA because the
restrictiveness of order 46, rule 1 (1)
of the
CPR did not allow me to apply for review of the trial Judge’s decision under
section 82 of the CPA for unfairness due
to bias and prejudice on her part in the parent cause. The rule is a hindrance and
nuisance to litigants’ access to review justice in courts.
Resultantly, therefore, by enacting the rider in order 46, rule 1 (1), the Rules
Committee is clearly in excess of power. The conferment of rulemaking power by
the Judicature
Act, Cap. 16[1] does not enable the Rules Committee to make a rule that travels
beyond the scope of the enabling Act (the CPA) or which is inconsistent
with it or repugnant thereto or affects
other existing legislations. It is my considered view that the
Rules Committee is a delegate exercising delegated authority, which authority
it, as a delegate, must exercise within the four corners of its delegation[2] and if it acts beyond that, its action cannot have any legal
sanction and accordingly ought to be amended. If the Committee feels that its conditions
imposed on the parent section are truly necessary and justified, then it should
have the humility and courtesy to move parliament to include them in the Act,
but not usurp parliament’s legislative powers.
Your Lordship, I conclude by reasserting strongly that to the
extent that order 46, rule 1 (1) of the
CPR imposes conditions on the exercise of review power which section 82 of the CPA does not itself
impose, the rule is inconsistent with and ultra vires the section and is
therefore null and void to the extent of the inconsistency, in light of section 18 (4) of the Interpretation
Act.
In Bakampa v. AG (2024), I requested Teko J. to declare order 46, rule 1 (1) of the
CPR to be inconsistent with and ultra vires section 82 of the CPA and is therefore null and
void to the extent of the inconsistency.
Until then, ruling making being the province of the Rules Committee,
preceded and informed/advised by the Judiciary Law Reform Committee, I invite the
two eminent Committees to do the needful. I so move, Your Lordship.
For God and my country,
Bakampa Brian Baryaguma
Lawyer
Mob.: +256753124713 and +256772748300.
Email: bakampasenior@gmail.com.
Copy to: Secretary, Judiciary Law Reform Committee/Chief Registrar
[1] Section
45 (1) of The Judicature Act mandates the Rules Committee to make rules for
regulating the practice and procedure of courts. It states that, “The Rules
Committee may, by statutory instrument, make rules for regulating the practice
and procedure of the Supreme Court, the Court of Appeal and the High Court of
Uganda and for all other courts in Uganda subordinate to the High Court.”
[2] In
this respect, to my mind, the four corners of the Rules Committee’s delegation
are to be ascertained from the provisions of section 82 of the CPA that is already reproduced
above at page 2 lines 29-36.
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