Kagirasi v Otushabira and Another (HCT - 05 - CV - CA - 008 - 2012) [2016] UGHC 6 (9 February 2016)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT - <sup>05</sup> - CV - CA - <sup>008</sup> - <sup>2012</sup>**

**MERABU KAGIRASI APPELLANT VERSUS**

**RESPONDENTS 1. ANTHONY OTUSHABlRA\ 2, KATUNGYE ARCHBOLD^**

## BEFORE: HON. JUSTICE DAVID MATOVU

## **JUDGMENT**

- [1]j£This is an appeal from the Judgment of His Worship Philip Odoki Chief Magistrate Mbarara, delivered on 7th February, 2012 where he dismissed the suit with costs. - **[2]** lOThe facts surrounding this appeal are as follows:- - £5 1. The Appellant filed Civil Suit No 39 of 2000 in the High Court of Uganda at Mbarara against the Respondents seeking a declaration that the Respondent illegally took over her kibanja at Rwesinga, Bubare, Kashari in Mbarara District. - 2. The above suit was eventually transferred to the Chief Magistrate's Court of Mbarara and assigned No 108 of 2001. - *25* 3. The Chief Magistrate heard the suit inter parties and on 7ln February, 2012 found that the Appellant had failed to prove her case on the balance of probabilities and he dismissed the suit with costs. - 4. The Appellant being dissatisfied with the dismissal of her suit, lodged the instant appeal.

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- **[** ]\_5 <sup>I</sup> am aware of my obligation to re-evaluate the evidence before the lower court and thereby come to my own findings. (See case of *Kifamunte Henry vs Uganda)* Supreme Court Criminal Appeal No 10 of 1997. - **[4]** IO The Appellant in his Memorandum of Appeal filed in this court on 20lh February, 2012 raised two (2) grounds of appeal, and since he opted to argue both grounds together in his submissions, this court will adopt the same trend.

*GROUNDS OF APPEAL*

- )\_5 *1. The learned Chief Magistrate did not properly evaluate the evidence on record in particular he did not address his mind to a number of material particulars and occasioned gross miscarriage ofjustice.* - *2. The learned Chief Magistrate failed totally to capture, to perceive the legal nature and aspect/the basis of the Appellant Plaintiff's case miscrued the law and authorities on leading oral evidence to alter, to vary the terms of a written document and occasioned a total failure of justice.* - [5]251 have carefully read the submissions of counsel for the Appellant and to me, he seems to be attacking counsel Ngaruye's conduct in this transaction and there is no substantive challenge of the evidence on court record. - [6301 do agree with the submissions of counsel for the Respondents, that indeed the learned Chief Magistrate properly evaluated the evidence before him and he reached the correct decision. - **[7JJ51** do not find any merits in this appeal and <sup>I</sup> accordingly dismiss it with costs to the Respondents.

**Dated this 9th day of February, 2016 DAVID MATOVU JUDGE**

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