Kalemesa v Kaggwa and 2 Others (Miscellaneous Application 1487 of 2023) [2023] UGHCCD 363 (19 December 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA

## MISCELLANEOUS APPLICATION NO 1487 OF 2023

# (Arising out of Civil Suit iVo L42 oJ 2012)

5 SAMUEL 1ULSON KALEMESA APPLICANT

#### VERSUS

### KAGGWA CHRISTOPHER & 2 OTHERS RESPONDENTS

# Before: Lada J4stice Alexandra Nkonge Rugadqa

#### 10

#### RULING

# Introduction:

This application secks a stay of cxccution of thc judgment and ordcrs of this court dated 11tt . Iu1y, 2023 in. EICCS .lVo. 142 of 2O12, pcnding the applicant',s appeal to thc Court of Appcal. Thc application was filcd by Mr. Samucl Kalcmcsa who was thc dcfendant in Ciuil Suit .l\Io. 142 oJ 2O12.

In his affidavit in support, hc avcrrcd that having bccn aggrieved by the decision of this court undcr that suit, hc filed a notice of appcal on 13fi of . Iuly, 2023 and also requestcd for thc rccord of plcadings.

20 That thc rcspondcnts will not bc prcjudiccd by an order of stay; that this application was filcd within rcasonablc timc and that thc appeal will bc rendered nugatory if dcnicd and substantial loss wouid bc occasioncd to him.

# Response bu the I"t respondent:

The reply in objection to the application was filed by the 1"t respondent, Ms Betty Kizza. ln her rcsponse , she claimed that thc appcal must be lodged within 60 days.

0/'i"

The notice of appcal in this casc was filed on 13s Ju|y,2023- The 60 days expired on 11th Septcmbcr, 2023 and no mcmorandum has yct been filcd to datc.

That the ordcr has in any casc alrcady becn cxccutcd by thc respondcnts in rcspcct ol ptot I315 which was transfcrred into thcir names as administrators of thc cstate of thc latc Christophcr Munycgcnya, as pcr the orders granted by this court. Thcrcforc, according to thcm thcre was nothing to stay.

Court,s attcntion was also drawn to thc dcmise of thc 1"t plaintiff in this suit. prior to his dcath an application for review IfiA No, 1399 of 2O23 had already bccn filed by him, jointly with thc respondents in this prcscnt application.

Thc praycrs in thc said application for rcvicw wcrc in rcspcct of an crror as pointcd out and dctccte d in this court's judgmcnt. 10

In its ruling datcd 7m Dcccmbcr, 2023, t:nc following orders/ declarations were madc:

- 1. The nc;r,rles of the 7d deJendant/respondent shall be cancelled. Jrorn the tltte Jor ptot 1315; and the nannes o;f the adminlstrators of the estate oJ the late Christopher Ezra Mungegengo be entered as the rightlal otuner of the said Plot. - 2. For the auoidance of doubt since there is a pendinq aPPlication for 2A stalt of execution (MA No. 7 487 of 2023) ord.er 7 aboue shall not be executed bu the dpplicants. until the detertnination of the said application. or until other orders a?e ,rla,de bu d co nt court. (e hasis added).

3. Costs anoarded to the applicants in respect of the main suit; houeoer no costs are auarded in relation to the present application.

In thcir two lcttcrs addrcsscd to this court both datcd 13th Dccembcr,2023,lhc firm of M/s Kinanje Nsibambi Adaocates, jointly with M/s Muhimbura & Co-

**Advocates** and acting for and on behalf of the respondents filed a complaint. Details of their complaint are contained in those letters.

The first letter: Request for urgent delivery of a ruling in MA No. 1487/2023 to resolve all pending conflicts over land comprised in Kyadondo Block 246 plot 1315 vide MA No. 1399 of 2023 and Civil Suit No. 142 of 2012..

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The second letter titled is: Application for the correction of the mirakes (sic!) in the ruling and orders vide MA No. 142 of 2012...under sections 98 and 99 of the Civil Procedure Act, Cap. 71.

The gist of their complaint was that a correction had to be made to remove an order for stay in the application for review: MA No. 1399 of 2023. The argument 10 was that after granting the application for review this court became functus officio and had no power to stay the execution of the same orders through an application which did not arise from MA No. 1399 of 2023. Accordingly, that the offending order was smuggled in the final orders of this court.

- The obvious and simple response by this court to that concern is that going by 15 the same section 98 of the Civil Procedure Act, Cap. 71 cited by counsel in that letter, this court has unlimited jurisdiction and is vested with inherent powers guaranteed thereunder, necessary to meet the ends of justice or prevent abuse of process of court to make interim orders. - In alignment with that provision, at the time when the review application was 20 heard and determined by court, court was mindful of the fact that an appeal had already been filed by the applicant herein; and partial execution had already commenced and concluded in respect of **plot 1316.**

The present application (MA No. 1487 of 2023) for stay of the orders granted under the main suit was also pending. Needless to add, the execution of the 25 review orders would have rendered both the application for stay and the pending appeal by the applicant nugatory.

Mularg

It is for those reasons (and the administration of justice in fact so demanded) that an order be made by this court as an interim measure to stay the execution of the order for review, till further orders were made by a competent court.

This court learnt thereafter that a notice of appeal was on 14th December, 2023 lodged in the registry by the complainants/respondents herein against the said review orders of this court in **MA No. 1399 of 2023.**

I can only add therefore that since there are two notices of appeal filed against the same judgment, the Court of Appeal would be the competent court to address the issues raised.

The order for stay made under **MA No. 1399 of 2023** remains in force therefore 10 until further orders are made by the Court of Appeal.

Alexandra Nkonge Rugadya

#### Judge

$\mathbf{L} = \mathbf{R} \times \mathbf{R}$

$\mathsf{S}$

19th December, 2023. 15

Delivered by early delays $\int$ 19/12/2023