Kabugo v Muwonge (Civil Application 210 of 2024) [2025] UGCA 102 (14 April 2025)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 2IO OF 2024 (ARISING OUT OF CIVIL APPLICATION NO. 162 OF 2024) (ALL ARISING FROM HCCS NO. 454 OF 2014)

## EDWARD KABUGO SSENTONGO APPLICANT

#### VERSIJS

### ANDREW MUWONGE RESPONDENT

(srNGLE JUSTTCE)

## RULING OF CHRISTOPHER GASHIRABAKE, JA

## Introdaction

- 1. The Applicant brought this application against the respondent Under Rules 2 (2),6(2Xb),40(2),42(2) and 43 ofthe Judicature (Court ofAppeal) Rules SI l3 l0 seeking for orders that; - a) The applicant be granted an interim stay of execution of the judgment and orders/declarations of Her Lordship Hon. Lady Justice Alexandra Nkonge Rugadya, Judge of the High Court given at Kampala on 121112024 in HCCS No. 454 of 20 I 4 pending the hearing of Civil Application No. I 62 of 2024 that the applicant filed in this court. - b) Costs of and incidental to this Application be provided for.

### The bockground

- 2. The briefbackground to the application, as can be discemed from the pleadings is that; the respondent on 3'd May 2013 sold to the applicant land comprised in LRV 1882 Folio l7 Mawokota Block 2ll-215 Plot 2 at Serinya at a cost of Ushs. 140,000,000/:. The applicant paid only a total of Ushs. 47,000,000/= and defaulted to pay the balance of the purchase price of UGX. 93,000,000/=. - 3. At the time of execution of the sale agreement, the respondent handed over to the applicant's lawyers an original copy ofthe certificate of title for the said land for purposes of carrying out a search and survey to confirm the ownership and acfual acreage of the land. - 4. When the respondent demanded for the balance from the applicant to no avail; he terminated the said sale agreement and demanded for his certificate of title. The applicant defaulted/ignored and/or failed to either pay the outstanding balance or retum the certificate of title which prompted the respondent to institute Civil Suit No. 454 of 2014 seeking for recovery of Certificate of Title for the suit land inter alia. - 5. Civil Suit No. 454 of 2014 was determined and judgment delivered on 12th day ofJanuary 2024 declaring the sale agreement between the parties unenforceable and that the defendant (applicant) was entitled to a refund of monies paid as

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- consideration to the plaintiff in respect of the suit land upon which the defendant was to immediately return to him the certificate of title for plot 2; inter alia. - Being dissatisfied with the decision of Court in HCCS No. 454 of 2014, the 6. applicant filed a notice of appeal. - On $4/3/2024$ the applicant was granted a conditional stay of execution vide $7.$ HCMA No. 248 of 2024 staying the judgment and orders/declarations in HCCS No. 454 of 2014 of depositing 40% of the estimated value of the suit land as security for costs. - The applicant failed to comply with a condition of depositing a sum of shs.1 8. $600,000,000/=(40\% \text{ of the current estimated value of the disputed land})$ as ordered by court in HCMA No. 248 of 2024 which prompted the respondent to re-apply for execution vide Execution Application No. 119 of 2024. - After a series of events, on $31/5/2024$ , the applicant's money i.e. the refund of 9. the purchase price was deposited in court with the cashier, Land Division on the court's directive. - After filing COA-00-CV-CL-0162-2024 for unconditional leave to appeal 10. against that part of the decision in HCMA No. 248 of 2024 and Stay of execution of the judgment and orders/declarations in HCCS No. 454 of 2014; the applicant filed the instant application seeking an interim stay and costs. - On $13/6/2024$ when the instant matter came up for hearing, Court gave an 11. Interim Order ordering the respondent not to proceed with execution until, when I give this ruling.

# The Grounds and evidence in support of the application.

- 12. The relevant grounds upon which the application is premised are as follows: - a) If the interim stay of execution is not granted, the respondent, who is in physical possession of the suit land will dispose of the same. - b) If the interim stay of execution is not granted, the intended appeal would be rendered nugatory. - c) It was fair, just and equitable and in the interests of justice that the remedy sought be granted.

# The grounds in opposition to the application

- The application was opposed by the respondent and the grounds are set out in 13. the affidavit in reply. - The gist of the opposition is that the application is not competently before 14. 40 this court, that the application is res judicata, that the decree in Civil Suit No. 454 of 2074 has so far been largely executed and there is nothing to stay, that the Applicant's application for stay of execution has been overtaken by events. - 15. The Applicant filed an affidavit in rejoinder and therein denied allegations 45 of the instant application being *res judicata*. The applicant re-iterated that

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the application meets the threshold and prayed that the court be pleaded to grant the orders sought.

## **Representation**

16. At the hearing of the application, the applicant was represented by Mr. Moses Kimuli and Ms. Asasira Saice appeared for the respondent. Counsel sought leave to adopt their written submissions and authorities cited therein, which leave was granted by the court.

## **Consideration and decision**

- 17. I have carefully considered the submissions of both counsel in support and opposition of the application as well as the numerous authorities cited by 15 counsel in support thereof. I have also perused the pleadings, affidavits and annexures thereto. However, before delving into the merits of the application, I note that in her submissions, learned counsel for the respondent raised what appeared to be preliminary points challenging the competence of the application. I am constrained to dispose of the said 20 objections first. - 18. Counsel for the respondent raised an objection that this application is barred by the doctrine of res judicata. In rejoinder, applicant's counsel submitted that section 7 of the Civil Procedure Act is not applicable to applicant' application for interim stay of execution - 19. As submitted by the respondent's counsel, the doctrine of res judicata is embodied in Section 7 of the Civil Procedure Act, Cap. 71, which provides as follows:

$"7.$ Res judicata.

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in 35 issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court."

This Court in *Ponsiano Semakula versus Susane Magala & Others*, 1993 20. KALR P.213 had this to say on the doctrine of res-judicata;

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"The doctrine of res-judicata, embodied in $S.7$ of the doctrine of all courts that there Procedure Act, is a fundamental must be an end of litigation. The spirit of the doctrine succinctly

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expressed in the well-known maxim: 'nemo debt bis vexari pro **una et eada causa'** (No one should be vexed twice for the same cause). Justice requires that every matter should be once fairly tried and having been tried once, all litigation about it should be concluded forever between the parties. The test whether or not a suit is barred by res-judicata appears to be that the plaintiff in the second suit trying to bring before the court in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. If so, the plea of **res-judicata** applied not only to points upon which the first court was actually required to adjudicate but to every point which properly belongs to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time".

- I agree with the above position. 20 - 21. In the instant application, the undisputed facts contained in paragraphs 5 (i), (j) & (k) of the respondent's affidavit in reply are that the applicant applied for stay of execution in the High Court vide HCMA No. 248 of 2024 which was granted with a condition that the applicant pays 40% of the estimated value of the suit land as security for costs within a period of 45 days from the date of delivery of this ruling, i.e. $4/3/2024$ . - 22. The said decision has never been set aside. Since stay of execution of judgment and orders/declarations of Her Lordship Hon. Lady Justice Alexandra Nkonge Rugadya, Judge of the High Court given at Kampala on 12/1/2024 in HCCS No. - 454 of 2014 had been the subject of litigation in HCMA No. 248 of 2024, this 30 application is barred by res judicata as the matter had already been dealt with by the High court and the same was determined. - I concur with the respondent's counsel that the High Court has already considered 23. the issue of stay of execution of the relevant decree and judgment. Thus, this Court cannot entertain another suit for stay of execution like the present - 35 application.. - This decision on a preliminary objection also applies to Miscellaneous 24. Application No. 162 of 2024 the substantive application herein, which is also hereby dismissed under Rule 2 (2) of the Rules of this Court with costs. - I note from the submissions of both counsel that they are in agreement as to the 25. 40 conditions precedent for the grant of an application for interim stay of execution. These were elucidated by the Supreme Court in *Hwan Sung Industries Ltd Vs* **Tajdin Hussein and 2 Others,** Civil Application No 19 of 2008. These are; - 1. There must be a competent notice of appeal - 2. There must be a pending substantive application - 45

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## 3. There must be a serious threat of execution before the hearing of the pending substantive application.

- 26. It suffices to note that before court can consider grant of an interim application for stay of execution, the applicant must prove that a Notice of Appeal has been filed in this court and a substantive application for stay of execution. - 27. Regarding the first condition, the evidence on record shows that a notice of appeal 10 was filed in the High Court by uploading the same on ECCMIS on 19th January 2024. - 28. As for the substantive application for stay of execution, I have ascertained from the Court records that there is a pending Civil Application No. 162 of 2024 for a substantive application for stay of - execution from which this application arises. One of the prayers being sought in Civil Application No. 162 of 2024 is Stay 29. of Execution of the judgment and orders/declarations of the trial judge in the original suit delivered on 12/01/2024 against part of the orders in HCCS No. 454 of 2014. - The applicant already obtained a stay of execution of the said orders 30. vide HCMA No. 284 of 2024. Thus, I agree with the respondent's counsel that the application upon which this instant application is premised is res judicata. - As to the existence of a serious or eminent threat of execution of the trial 31. 25 Court Judgment and orders made therein, there is evidence from the affidavit in reply that execution of orders in HCCS No. 454 of 2014 has largely been completed. What is remaining is for the applicant to hand over the to the respondent a certificate of title for land comprised in LRV 1882 Folio 17 Mawokota Block 211-215 Plot 2 at Serinya. 30 - 32. The respondent having given the applicant the first option to purchase the land and later made a refund as ordered by court, the respondent discharged/executed all his obligations under the decree in HCCS No. 454 of 2014. And having received the refund, the applicant is obliged to complete execution by handing over to the - respondent the certificate of title for land comprised in LRV 1882 Folio 17 35 Mawokota Block 211-215 Plot 2 at Serinya or else he would be in contempt of court. - 33. The net effect of the above findings is that the application fails, with the following orders: - a) The interim order vide COA-00-CV-CL-0210-2024 dated 14/6/2024 staying execution of the orders/declarations of her lordship the Hon. Lady Justice Alexandra Nkonge Rugandya, delivered on 12/01/2024 in HCCS No. 454 of 2014-Andrew Muwonge & Another Vs. Edward Kabugo Sentongo is hereby vacated. - b) Miscellaneous Application No. 162 of 2024; the substantive application herein, which is also hereby dismissed.

- 5 c) An order hereby issued against the applicant ordering him to hand over to the respondent the certificate of title for land comprised in LRV I 882 Folio l7 Mawokota Block 2l I -215 Plot 2 at Serinya with immediate effect. - d) The Registrar of Titles is hereby ordered to vacate the Applicant's caveats lodged on land comprised in comprised in LRV 1882, Folio 17, Mawokota Block 211-215, plot 2 at Serinyabi, Mpigi District (if any). - e) The applicant shall pay costs of the application.

I so order;

15 Dated at Kampala . Iily aay or..fiJ'.5.){ 2025 c STOPHER GASHIRABAKE, JUSTICE OF APPEAL r