Kagubale & 9 Others v Kiboga District Local Government & 3 Others (Miscellaneous Application 140 of 2024) [2024] UGHC 1014 (28 October 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA **MISCELLANEOUS APPLICATION NO. 140 0F 2024** (FORMERLY MUBENDE MA. NO. 170 OF 2017) (ARISING FROM KIBOGA CIVIL SUIT NO.68 OF 2024)

- 1. BONIFACE KAGUBALE - 2. JOHN BOSCO KAGY BYARUGABA - 3. EDWARD KAGY HIGIRO - 4. JOHN KAGY MATOVU - 5. AGNES TUMUSIIME - 6. ROBERT KAGY MUTUNGYE - 7. STEVEN KAGURUSI - 8. ROBINAH MBABAZI - 9. COSTA TUMUSIIME - 10. BENJAMIN KAGUBALE ASIIMWE ::::::::::::::::::::::::::::::::::::

$VS$

1. KIBOGA DISTRICT LOCAL GOVERNMENT

**2. EDWARD KARIBWENDE**

3. MUGISHA PAULUS KAREKYEKI

4. KIBOGA DISTRICT LAND BOARD ::::::::::::::::::::::::::::::::::::

BEFORE: HON. MR JUSTICE KAREMANI JAMSON. K

Mau

## **RULING**

## **Introduction**

This application is brought under Order 41 rules 1 & 9 of the Civil Procedure Rules, Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act Cap 13 seeking for orders that:

- 1. A temporary injunction doth issue restraining the respondents, their agents, representatives, assignees, transferees from selling, fencing, building, alienating, mortgaging, effectively any dealings or leasing the suit land or part thereof comprised in Leasehold Register volume 1479 Folio 2 in respect of Singo Block 597 formerly Plot 10, Land at Kiryanyonza, Kyamakola, Kiboga district (herein called the suit property) till the hearing and final disposal of the head suit. - 2. Costs of the application be provided for.

## <u>APPLICANTS' CASE</u>

The applicants filed this application on 8<sup>th</sup> September, 2017 before Court. It is supported with an Affidavit deponed by BENJAMIN KAGUBALE ASIIMWE the 10<sup>th</sup> applicant of C/O M/s KAGGWA & KAGGAWA ADVOCATES, PILKINGTON ROAD, NIC BUILDING ANNEX, GROUND FLOOR SUITES A04 & A05, P. O Box 6624, Kampala; wherein he briefly contends as follows;

- 1. That, there is a Civil suit pending against the respondents by the applicants and it is still pending hearing and final disposal by the honorable Court. - That, the dispute between the applicants and the respondents is in regard to the $2.$ alleged lease offer granted by the 4<sup>th</sup> respondent to the 3<sup>rd</sup> respondent of the suit land, ignoring the well-known and prior interests of the applicants.

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Mam'

- That, the applicants have a strong prima facie case with a reasonable probability $3.$ of success in the head suit. - That, the applicants stand to suffer irreparable loss and damage if the current $4.$ status quo of the property is not maintained by the grant of orders sought in this application. - That, the balance of convenience lies in favor of the applicants who are already in 5. occupation of the suit land. - 6. That, there will be no injustice caused to the respondents and this honorable Court has discretion to grant the orders sought in order to preserve the status quo. - $7.$ That, it is just and equitable that this honorable Court allows this Application and grants the prayers sought herein.

The applicants filed written submissions on the $13<sup>th</sup>$ of November, 2017 and when this matter was fixed for hearing on the 24<sup>th</sup> day of June, 2024 Court was invited to make a ruling based on the written submissions filed herein. At the request of counsel for the respondent this hearing was adjourned to enable the parties conduct Locus to ascertain the current status of the suit land.

When the matter came up for a $2^{nd}$ hearing, on $2^{nd}$ July, 2024, learned counsel for the applicant informed court that the status quo of the suit land had been tampered with by the 3<sup>rd</sup> respondent. He prayed to court to make an order for restoration of the status quo before making another to maintain the status quo although no sworn evidence was filed in support of this prayer.

### **RESPONDENT'S CASE**

The respondent while opposing this Application, swore an Affidavit in reply deponed by KAGERE YUSUF of C/O NYANZI, KIBONEKA & MBABAZI ADVOCATES, I will not reproduce its contents, but I have taken note of it.


The 1<sup>st</sup> and 4<sup>th</sup> respondents filed their written submissions on the 20<sup>th</sup> November, 2017. The 2<sup>nd</sup> respondents filed their written submissions on the 17<sup>th</sup> of November, 2017 and the 3<sup>rd</sup> respondents filed their written submissions on the 17<sup>th</sup> of November, 2017.

This matter was fixed for hearing on the $24$ <sup>th</sup> June, 2024. Counsel for the 3<sup>rd</sup> respondent invited court to rely on the submissions filed herein in 2017. He also prayed that the matter be adjourned to allow them do a Locus visit to ascertain the current status of the suit land.

At the $2^{nd}$ hearing of $2^{nd}$ July, 2024, counsel for the $3^{rd}$ respondent informed court that when he visited locus, he established that the 3<sup>rd</sup> respondent, had dug a ditch in respect of his land and not the suit land. That, this ditch was to prevent and restrain cattle from trespassing on his land. That, the applicants were destroying his fence.

Counsel for the $3^{rd}$ respondent also informed court that in the interest of justice he could agree on the status quo to be maintained as is, because such applications would delay the prosecution of the main suit.

#### REPRESENTATION

The applicants were represented by Counsel Olowo Zack of M/S ZACK OLOWO ADVOCATES & SOLICITORS while Mr. Daniel Byaruhanga and Mr. Edwin Tumushinye appeared for the 2<sup>nd</sup> Respondent and Mr. Tumwesigye Allan appeared for the 3<sup>rd</sup> respondent.

#### **SUBMISSIONS**

Both parties invited court to determine this application based on their written submissions filed in 2017. This court has taken them into consideration in arriving at this decision.

#### ISSUE FOR DETERMINATION

Court has framed the following issue for the determination of the instant application.

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main'

- 1. Whether the application raises sufficient grounds for granting a Temporary Injunction Order - 2. What are the remedies available?

#### **RESOLUTION OF ISSUE**

## ISSUE 1: WHETHER THE APPLICATION RAISES SUFFICIENT GROUNDS FOR GRANTING A TEMPORARY INJUNCTION ORDER?

An Injunction Court Order is one whereby the court requires a party to do or refrain from doing a particular act. The major purpose of a temporary injunction Order is to maintain the status quo of things pending the determination of the head suit.

And the Law has made provision for the grant of such Orders in section 38 of the Judicature Act Cap 16, section 98 of the Civil Procedure Act Cap 282 and Order 41 of the Civil Procedure Rules.

Case Law has laid down three principles or conditions for consideration before an Order for the grant of a temporary injunction is made (See the cases of American Cynamid Co. vs Ethicon Ltd (1975) 1 ALL E. R 504 and Kiyimba Kagwa vs Haji A. N. Katende (1985) HCB $43$ ).

It should be well noted that, in granting such temporary injunction orders, court doesn't look to the legal rights of the parties as such but rather at preservation of the status quo until disposal of the main suit. (See Godfrey Ssekitoleko & Others Vs. Sseezi Mutabazi $(2001-2005)$ HCB $(3)$ 80 & Wasswa Vs. Kakooza $(1989)$ HCB 79).

It is therefore imperative for court to ascertain the status quo intended to be maintained before an order for preservation of the same is made. In the instant case, counsel for the applicant informed court that the status quo has been tampered with, he prayed that the same be restored although this prayer was not pleaded for in his pleadings. The applicants never labored to apply for leave to either amend the application or file a supplementary affidavit in support of the prayer for restoration of the status quo. It

$-$ *naw*

should also be noted that in the instant case the main suit has already been set down for hearing and this application was filed in 2017. It is not by sup-rise that the status quo has changed.

$\mathbb{L}$

This court taked respondibility for the delayed disposal of this application

In the case of Clavergen Fish & Food LTD VS. International Finance Corporation & 7 Others MA No. 441 of 2001 (2002-2004) UCLR 132 at page 137 it was held that, "Indeed the Court needs to know the status quo intended to be preserved by the application before applying the three conditions laid down for consideration of a temporary injunction.

For the reason, that the status quo intended to be preserved has already been tampered with, the current application lacks merit and is accordingly dismissed.

Each party to bear its own costs in this application.

I so order

war

KAREMANI JAMSON K. **JUDGE** 28.10.2024

Court: The ruling to be sent to the parties by email.

Mam

KAREMANI JAMSON K.

**JUDGE** 28.10.2024