Kabushenga v Kirima Limited & 4 Others (Miscellaneous Application 1475 of 2022) [2023] UGCommC 280 (13 March 2023)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT DIVISION)

# MISC. APPLICATION NO. 1475 OF 2022

DR. HAMLET KABUSHENGA ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# 1. KIRIMA LIMITED

- 2. UGANDA DEVELOPMENT INITIATIVE - 3. PROTESTANT CHURCH OF EPPINGEN - 4. GREAT LAKES REGIONAL UNIVERSITY LTD - 5. CHIFCOD SOCIAL ENTERPRISES LTD **EXAMPLE 21 EXPONDENTS**

## **BEFORE: HON. LADY JUSTICE ANNA . B. MUGENYI**

#### **RULING**

I have read the pleadings and listened to the submissions of both counsel in this matter.

The main issue for determination by this court is whether this is a proper matter for leave to appeal to be granted to the Applicant to appeal the ruling and orders of this court dismissing Misc. Application 244/2022 delivered on 3/10/2022.

It is trite law that leave to appeal shall not be granted except where the intending Appellant satisfies the court that the decision against which an appeal is intended involves a substantial question of law or is a decision appearing to have caused a substantial miscarriage of justice. (See Alley Route Ltd versus Uganda Development Bank Ltd, HCMA 634/2004).

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Leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration. (See Sango Bay Estates Limited versus Dresdner Bank [1971] EA 17).

o

The gist of the counsel for the Applicants argument in this matter is that because court held that that the rulings in respect of preliminary objections 2 to 5 will be made in the final judgment after evidence has been adduced by the parties; the Applicant has been denied their right to a fair hearing which constitutes a substantial point of law for the Court of Appeal to handle.

It must be pointed out at this point that counsel for the Applicant not only misconstrued the ruling of the court but grossly misled the couft in his interpretation of the ruling in issue. This court specifically on page 3 stated that:

" Having read the pleadings and listened to the submissions of counsel; it became clear to the court that the issue above raised matters of fact that require coutt to go beyond the pleadings and require evidence to be adduced by all the parties herein during a full trial... This couft accordingly declines to make pronouncements on the issues above and will defer rulings on the same in the final judgment in Civil Suit 18 of 2022." (emphasis mine).

For counsel for the Applicant to submit that the Applicant has been denied right to a fair hearing in the light of court's ruling above is not only false but greatly misleading because the intention of the court was to avail an opportunity for both parties to be heard on the issues raised at the full trial where both parties would adduce evidence to prove their claims. In fact the need for a fair hearing is what drove the court to hold as it did. Dismissal of the application is the only logical action that could be taken having disposed of preliminary objections l and 6 as well.

NN

Further, it is the position of the couds buttressed by case law that save for the interlocutory decisions specified under the Civil Procedure Rules and from no other orders there is no right of appeal originating from interlocutory orders which are incidental to the suit but not resulting from the final determination of the suit itself (Leaf Tobacco and Commodities (U) Ltd versus Mastermind Tobacco (K) Ltcl MA 044i/2012)

o

Indeed as held in the case of Kilama Tonny & Another vetsus Mrc Grace P. Otim C. A 031/2019 Hon. Justice Stephen Mubiru stated thus;

" The regime for interlocutory appeals was not designed to cater for appeals against routine procedural and evidentiary rulings, not determinant of the rights of the parties , made in the ordinary course of a trial. Therefore, there is no right of appeal from an order overruling a preliminary objection, or an objection raised during the cource of the trial based on a point of law ... The requirement for leave is intended as a check to unnecessary or frivolous appeals ...."

In the present matter, not only do the rulings of the court on the preliminary objections not result in final determination of the main suit, but also cannot be appealed from since they were routine procedural and evidentiary rulings.

As pointed out by the Honourable Judge in the Kilama Tonny case (supra) "The overloaded system of Justice simply cannot cope with, and should not have to tolerate interlocutory appeals directed to issues of little moment...,"

In conclusion and from all the foregoing; this Court does not deem the present application a proper one to grant leave to appeal because no question of law that is of sufficient difficulty or importance has been raised by the Applicant to warrant or require the decision of or consideration by the Court of Appeal.

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In the circumstances, this application is dismissed with costs to the Respondents.

Mr. Britis

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HON. LADY JUSTICE ANNA B. MUGENYI DATED...................................