Alexander Kizza Kiberu v Namugga Florence (Miscellaneous Application No. 10 of 2024) [2025] UGHC 475 (27 June 2025)

### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT LUWERO**

#### **MISCELLANEOUS APPLICATION NO. 10 OF 2024**

### **ARISING FROM CIVIL SUIT NO. 10 OF 2023**

**ALEXANDER KIZZA KIBERU :::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

## **NAMUGGA FLORENCE:::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

### **RULING**

This is a ruling on the Application for the withdrawal of this suit made by the Applicant in the instant case made on the 2nd day of June 2025.

At the hearing of the Application, Mr. Ogena Abraham represented the Applicant while Ms. Nakazzi Margaret holding brief for Mr. Kajeke Kenneth represented the Respondent.

At the hearing held on the 2nd day of June 2025, counsel for the Applicant submitted that by June 2024, the Applicant had conducted a search at the land registry which confirmed that part of the suit land had been sold off to third parties whose names had been entered onto the certificate of title despite the caveats thereon. Consequently, the Applicant filed an application to add the 3rd parties who had been entered on the certificate of title to the main suit. It is on this basis that Counsel for the Applicant prayed that this Application be withdrawn.

In reply, counsel for the Respondent submitted that she did not object to the withdrawal of this Application. However, she prayed that the court awards costs to the Respondent since she had already filed her Affidavit in Reply and had intimated to court that she intended to raise a preliminary point of law that the instant application was offending the rules of res judicata.

I have taken into consideration the submissions by both parties. It is settled law that the Plaintiff/Applicant may, with the leave of the court, withdraw a suit against the Respondent/Defendant as the case may be. This is the position of law as set out in **Order 25 Rule 1 of the Civil Procedure Rules,** which states;

*Order XXV – Withdrawal and adjustment of suits 1. Withdrawal of suit by plaintiff or defendant*


*(1)The plaintiff may at any time before the delivery of the defendant's defence, or after the receipt of that defence before taking any other proceeding in the suit (except any application in chambers) by notice in writing wholly discontinue his or her suit against all or any of the defendants or withdraw any part or parts of his or her alleged cause of complaint, and thereupon he or she shall pay the defendant's costs of the suit, or if the suit is not wholly discontinued the costs occasioned by the matter so withdrawn. Upon the filing of the notice of discontinuance the costs shall be taxed, but the discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action.*

*(2)Except as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw or discontinue a suit without leave of the court, but the court may, before or at, or after hearing upon such terms as to costs, and as to any other suit, and otherwise as may be just, order the action to be discontinued or any part of the alleged cause of complaint to be struck out.*

*(3)The court may, in like manner, and with the like discretion as to terms, upon the application of a defendant order the whole or any part of his or her alleged grounds of defence or counterclaim to be withdrawn or struck out, but it shall not be competent for a defendant to withdraw his or her defence or any part of it without such leave.*

## See **Dombo v Bigirwenkya and Another (Miscellaneous Application 160 of 2022) 2023; Makaru v Tumwebaze civil suit No. 125/2008**.

In the instant case, the Applicant has opted to have this Application withdrawn and the Respondent has not objected to it. The only issue that the Respondent raised regarding the withdrawal is that of costs. It is also settled law that a Defendant/Respondent may make an application for costs to the court upon the withdrawal of the suit by the Plaintiff.

Regarding costs, the law is that costs follow the event and are awarded at the court's discretion (**Section 27 of the Civil Procedure Act**). The court's discretion is usually guided by the principle that a successful party is entitled to costs of the suit unless the Court for good reason orders otherwise (See **Kwizera Eddie Vs Attorney General SC Appeal No. 01 of 2008**). In the instant case, the Respondent filed her pleadings and had her advocate attend court and as such is entitled to costs incurred in defending this Application.

For the foregoing reasons, this Application is dismissed at the instance of the Applicant and costs are awarded to the Respondent.

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I so order.


## **FARIDAH SHAMILAH BUKIRWA NTAMBI**

# **AG. JUDGE**

Delivered on ECCMIS the 27th day of June 2025