ATC Uganda Limited v Kenyonyozi & 3 Others (Miscellaneous Application 1583 of 2024) [2024] UGCommC 240 (13 August 2024)

### **THE REPUBLIC OF UGANDA**

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

#### **COMMERCIAL DIVISION**

### **MISCELLANEOUS APPLICATION NO. 1583 OF 2024**

## **(ARISING FROM CIVIL SUIT NO. 0057 OF 2023)**

**ATC UGANDA LIMITED :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

### **1. KENYONYOZI VICTORIA**

- **2. KAHIIRE BETTY KEMANZI** - **3. KAHIIRE HENRY MUSINGYE** - **4. KAHIIRE DIANA KATUSIIME ::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDNETS**

**(***ALL ADMINISTRATORS OF THE*

*ESTATE OF THE LATE NOBERT KAHIIRE***)**

Before Hon. Lady Justice Harriet Grace Magala

### Ruling

## **Background**

This is an application that was filed under section 33 of the Judicature Act, Cap.16, section 98 of the Civil Procedure Act, Cap. 282, Order 52 rules 1,2 & 3 of the Civil Procedure Rules as amended and Rule 4 of the Judicature Court Vacation Rules for a certificate of urgency to hear Miscellaneous Application No. 1581 of 2024 during court vacation.

Page **1** of **4**

The Application is for orders that:

- a) A certificate of urgency be issued to allow the Applicant decommission and remove the telecommunications mast situate at land comprised in Kibuga Block 29 Plot No. 105 in Kamwokya before it collapses; - b) Costs be in the casue.

The grounds of the Application are contained in the Affidavit of Mr. Faruk Kalinaki, the Landlord's Relationship Manager of the Applicant but briefly are that:

- 1. The Applicant has filed HCMA No. 1581 OF 2024; - 2. The Application seeks to decommission and urgently remove a telecommunications mast; - 3. The mast is a health risk and hazard capable of injuring the community and property around it; - 4. The Respondents and his agents have obstructed the decommissioning of the mast; - 5. It is in public interest that the telecommunications mast be decommissioned and removed swiftly; and - 6. It is the interest of justice that this application is granted.

## **Representation**

This is an ex parte application. The Applicant was represented by Mr. Patrick Mugalula and Mr. Philip Muhumuza of M/s ENSafrica Advocates.

# **Hearing**

The Learned Counsel for the Applicant made oral submissions. It was submitted that the Applicant has faced great hardship from the Respondentsto decommission

the mast. The Applicant terminated the Tenancy Agreement with the Respondents and according to her, the Respondents are owed USD \$ 11,000 which they are ready to deposit in court. The Respondents on the other hand claim a lot more is owed to them although they have not provided proof of the same.

It was submitted for the Applicant that the risk that the mast causes to the safety and lives of property and persons in its location is contained in an emergency survey report authored by Abbot Construction which visited the site of the mast on the 3rd May 2024. The risks as per the Report are contained at pages 2 to 9 but briefly are that:

- a) The mast has no CE equipment and no power equipment; - b) The apron and fence ground beam are greatly exposed due to erosion; - c) The fence ground beam is greatly exposed due to erosion; - d) There is a 1.4m deep excavation that is a zero distance from the fence line; - e) The site compound requires restoration; - f) The damaged guard house as a result of erosion; - g) There is a faulty AWL on top of the tower; - h) There is a bird's nest on the tower platform; - i) The antenna bracket is rusty; - j) There is a missing earthing connection on all tower legs, - k) There is a missing manhole cover; and - l) Rusted fence razor wire.

The above risks are also backed up by photographic evidence.

It was also submitted for the Applicant that given that the rainy season was upon

us, there was imminent risk pause to the public and as such there was need to

grant the certificate of urgency and hear the application during court vacation. He cited and relied on the case of **Nassolo Joan & Anor vs Equity Bank Uganda Limited & 2 Others, HCMA 1263 of 2020.**

### **Determination**

The Applicant has filed HCMA 1581 of 2024 which cannot be heard before a certificate of urgency is granted. Section 98 of the CPA refers to the inherent powers of court to make orders that are necessary for the ends of justice to be met. Pursuant to Rule 3 of the Judicature (Court Vacation) Rules, the Court Vacation runs from the 15th July to 15th August. This implies that only criminal matters shall be heard and civil matters which in the "opinion of the presiding Judge, shall be of an urgent nature" can be heard at the Judge's discretion. Upon reading the Report on the state of the mast and the site where it is located, I am convinced that the Applicant had a good case and hearing of HCMA 1581 OF 2024 is befitting for the issuance of a certificate of urgency.

I hereby GRANT the Applicant's prayer and ISSUE A CERTIFCATE OF URGENCY to enable this court to entertain the matter during Court Vacation.

The costs of the Application shall abide the outcome of the main cause.

**Signed, dated and delivered electronically(ECCMIS) this 13th day of August 2024.**

**Harriet Grace MAGALA**

**Judge**