Birungi and 3 Others v Namubiru and Another (Family Misc Application 291 of 2023) [2023] UGHCFD 138 (14 July 2023)

## **THE REPUBLIC OF UGANDA**

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

## **(FAMILY DIVISION)**

#### **MISCELLENAOUS APPLICATION NO 291 OF 2023**

#### **(ARISING OF H. C. C. S NO. O7 OF 2019)**

- **1. SAULO BIRUNGI** - **2. PETER MUKASA** - **3. SPECIOZA KAYITESI MUKALUMONG** - **4. KIZITO STEPHEN :::::::::::::::::::::::::::::::::::::: APPLICANTS**

#### **VERSUS**

- **1. NAMUBIRU BETTY OWORI** - **2. NAMUTEBI WINNIE :::::::::::::::::::::::::::::::::::::: DEFENDANTS**

## **BEFORE HON. LADY JUSTICE CELIA NAGAWA**

# **RULING**

#### **1.0 Representation**

- 1.1 The Applicants were represented by Counsel Byomugisha Guma of M/S KGN Advocates, Kampala. - 1.2 The Respondents were represented by Counsel Henry Kirunda of M/S Terrain Advocates, Kampala.

# 2.0 **The Application.**

2.1 This application is brought to Court by way of Notice of Motion, under Section 98 of the Civil Procedure Act, Cap. 71 Order 52


Rules 1, 2 and 3 of the Civil Procedure Rules, Statutory Instrument No. 71-1, and Section 33 of the Judicature Act, Cap.13 seeking the following orders.

- i) The head suit be fixed/re-scheduled and heard de-novo, the same having proceeded so far ex-parte. - ii) The costs of the application be provided for. - 2.2 The application is based briefly on the following grounds. - a) Counsel for the Applicants/Defendants, at the time the case proceeded ex-parte was undergoing post-accident surgeries and related treatment and incommunicado which fact was well known by counsel for the Plaintiffs/Respondents. - b) The 4th defendants/applicant, during the course of the hearing was undergoing serious mental treatment and has since passed on, a fact known to the plaintiffs/respondents. - c) The head suit, has in the main been rendered nugatory by an earlier decided case touching the said subject/estate and the applicants/defendants in the application/head suit respectively. - d) In the interests of justice and harmony the head suit be rescheduled/re-heard de-novo to avoid any irregularities. - 2.3 This application is supported by affidavits sworn by the 1st applicant Saulo Birungi and Counsel Byomugisha Guma on 20th March, 2023. This affidavit contains affidavit evidence in support of this application.


2.4 The applicant further, filed in Court an affidavit in rejoinder to this application and in rebuttal to the respondents' affidavit in reply.

## **3.0 The Respondents' case.**

- 3.1 The Respondents filed in Court an affidavit in reply in opposition to this application on 12th May, 2023. This affidavit in reply contains affidavit evidence in support of the respondents' case. The respondents refute the orders being sought by the applicant in this application. - 3.2 The Respondent opposed this application relying on the following grounds summarized below. - 1. The main suit came up for hearing on the 25th of February, 2022 and on that day the 1st and 4th applicants who were in attendance informed court that their counsel (Mr. Byomugisha Guma) had been involved in an accident and was unable to attend court. Accordingly, the case was adjourned for hearing on 10th June, 2022 at 9:00am. - 2. On 10th June, 2022 none of the applicants nor their counsel attended court. Consequently the matter was heard Ex-parte and it was adjourned for Judgement to 14th July, 2022 on the basis of the Respondents' evidence and submissions. - 3. On 14th July, 2022 the parties were informed that Judgement was not ready and the matter was adjourned to 16th September,2022.


- 4. On 16th September, 2022, the Respondents were informed that the trial Judge, Justice David Matovu had been transferred to Mukono High Court. - 5. The Respondents then prayed for a new Judgement date where after the court fixed the matter for the locus Visit on 13th March, 2023. - 6. That the Current application was filed 2 weeks after service of the locus Visit hearing upon the Applicants. - 7. That it is apparent that the applicants have never wanted the case to proceed for final hearing and that granting this application will be prejudicial to the to the Respondent's/Plaintiffs' case since all submissions are already on Court Record.

# 4.0 **Issue for Determination by this Court.**

**1. Whether the Head suit (Civil Suit No. 07 of 2019) should be fixed/rescheduled and heard De-novo?**

# **5.0 Resolution by Court.**

- 5.1 The applicants seek to have this matter re-opened and have the court hear it again (afresh). They seek to cross examine every single witness whose witness statement was admitted by this Honourable Court and thereafter present defense witnesses whose witness statements they believe are also on record. - 5.2 It is the applicants' submission that the rationale for this application is that counsel for the applicants/respondents was involved in accident and was unable to be present in court at


the time when the matter was heard. They also aver that the 4th defendant in the main suit has since passed on and yet his allegations carry a lot of weight as the respondents were his nieces and he was appointed as a customary heir of the late Wamala Nsimbi.

- 5.3 It is also the submission of Counsel for the Respondent that the subject matter being contested in the head suit or part of it thereof is the same subject matter in High Court Civil Suit No.18 of 2016 *(Esther Wandera & Administrator General Versus Specioza K. Mukamulongi, Saulo Birungi, E. W. Kiggundu and Peter Mukasa)* decided by this Honourable Court on the 6th day of September, 2022. He also informed this court that the grant of probate over the Estate was cancelled by this Court in the same suit. - 5.4 The Respondents' aver that granting this application would be prejudicial to their case. They submitted to this court that the Applicant's never wanted this case to proceed from the onset and that they are guilty of unreasonable delay and that no explanation has been provided for the Applicant's failure to attend court the adjourned date. - 5.5 Counsel for the Respondent cited his accident as a reason for his failure to appear before this Court hence the rationale for the suit being heard de-novo. This court acknowledges Counsel for the Applicant's accident as it was informed by Counsel for the Applicant on 25th February, 2022 which is why the matter was adjourned to 10th June, 2022 at 9:00am. The matter was


adjourned for 3 months, with the knowledge of all the parties. Counsel for the Applicants/Respondents' accident was not news to them 3 months after the matter was adjourned. The Applicants failed to appear before the court and did not give reason as to why they did not appear on 14th June, 2022.

- 5.6 On 21st March, 2023, this Court conducted a locus Visit at the suit property on 21st February, 2023 at Kakajjo Village, Kigandazi Zaone, Wakiso District starting at 11:00 am, as provided for under **Order 18 Rule 14 of The Civil Procedure Rules SI 71-1,** which provides that the Court may at any stage of a suit inspect any property or thing concerning which any question may arise. At this locus visit, Counsel for the Applicants was given an opportunity to be put himself on record and have the matter heard inter-parte, however he chose not to do so. Although, he kept engaging in the locus proceedings. This court conducted the locus proceedings and heard from both the parties including the Respondents/Applicants. The pleadings of the Applicants are on file and will also be relied on. - 5.7 This court is also cognizant of the fact that this is a 2019 matter and the Respondents/Plaintiffs have executed their duty in aiding the adjudication of this matter. The Applicants had the opportunity to put themselves on Record and failed to. Hearing this matter De-novo would not only be a waste of court's time and effort in hearing the case originally, but it would even further delay justice for all the parties. Besides counsel for the


applicant has submitted and shared with this court that a similar case was heard and decided by this Honorable Court on 6th September, 2022.

- 5.8 This court is enjoined under **Article 126 2 (b) of the Constitution of the Republic of Uganda, 1995** (as amended) to administer Justice without delay. This is a 2019 matter, the parties were given every opportunity to be heard and the main suit is coming up for Final Judgement in 2023. Any further hearing of this matter would be an injustice to the Plaintiffs in the main suit whose Justice should not be delayed any further. - 5.9 This court has also been informed of the death of the 4th defendant whose witness statement is on Record and shall be considered by the court in adjudicating this matter, hence the applicant will not be prejudiced in anyway.

## **6.0 Conclusion.**

In the final Result, the court decides as follows.

- 1. The Application is hereby dismissed. - 2. Costs to be awarded in the main suit.

# *Dated, signed and delivered by email this 14th July, 2023.*