Kamoga v Nabukeera (MA 3696 of 2023) [2024] UGHCLD 108 (22 April 2024)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### LAND DIVISION

## MA NO.3696 0F 2023

# (ARISING FROM EXECUTION MISC. APPLICATTON NO. 0418 oF 2023

## AND CrVrL SUrT NO.616 OF 2021).

KAMOGA NICHOLAS APPLICANT

#### VERSUS

NABUKEERA ROBINA............. ... RESPONDENT

## BEFORE: HON. MR. JUSTICE TADEO ASIIMWE

#### RULING

This application was brought under Section 98 of the CPA, Order 46 rules I & 8, and order 52 rules 1,2 &3 of the Civil Procedure Rules (CPR).

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The applicant brought this application seeking for orders that this Court dismissing Civil Suit No. 616 of 2021 be set aside, that stay of execution in civil suit 616 of 2021 be issued and costs.

The application is supporled by an affidavit of the applicant dated 6tr' December 2023.

The grounds of the application as contained in the notice motion and affidavit in support and briefly are that;

- l. The Applicant and 1l others instituted civil suit NO.6l6 of <sup>2021</sup> against the respondent seeking for orders that a declaration that the defendant illegally sold land comprised in Kyadondo Block 124 Plot 26 at NabutakaGayaza Waliso District; a declaration that the land forms the estate of the late John Peter Matovu, cancellation of the land agreements on the suit land, damages among other reliefs. - 2. That the applicants instructed their lawyer M/s Lukwago & Co. Advocates to pursue and handle the matter on their behalf. - 3. That the applicant's lawyers did not pursue the matter and it was subsequently dismissed by the court. - 4. That there is sufficient cause why the case should be reinstated and heard on its merits.

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- 5. That the applicants have always been interested in prosecuting Civil Suit No. 616 0f 2021. - 6. That its fair and equitable that civil suit No. 616 of 2021 be reinstated on its merits. - 1. That it is in the interests of natural and substantive .iustice that this appl ication is granted.

On the other hand, the respondent opposed the application relying on an affidavit in reply by Nabukeera Robina, the respondent dated l8th April, 2024.

The gist of response is that the application is incurably defective and not tenable in law as it contravenes and offends the Civil Procedure Rules and that there is no sufficient cause to warrant reinstatement due to the applicant's dilatory conduct by failure to prosecute the suit. That the application is frivolous, vexatious and outright abuse of Court process intended to delay the cause ofjustice.

At the hearing of the application, the applicant was represented by Counsel Ronald Tukachungurwa while Counsel Mukiibi Andrew appeared for the respondent. Both Counsel made oral submissions which I shall consider in this ruling.

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#### RESOLUTION

I have considered the application, the supporting affidavit and its attachments. I have also considered the arguments for both Counsel.

It is important that the decision of Court from which this application arises is understood. For that matter I shall reproduce it as follows; -

"This suit was filed on the l3'h of July 2021. The defendant filed written statement of defence on 27tt'of July 202t. Since then the plaintffi have not taken any steps to prosecute the suit.

Under O.11A R. I (2) and (6) of the Civil Procedure Amendment Rules, <sup>20</sup>I9, a suit abates if the plaintilf does not take out summons for directions within 28 days from the date of the last reply. It's now over 50 days since the last pleading was .filed. Consequently, this suit abated, and is hereby dismissed with costs to the defendant".

From the above order, it is crystal clear that the original suit was abated by the trial Judge 3 years ago. The argument by counsel for the applicant that the suit was simply dismissed is not sustainable.

The position of the law is clear on cases dismissed under abatement. The remedy available to a pafty whose case has been abated lies in filing afresh as per order I lA rule 7 of the CPR as amended. The case of Abdul Ddamulira Vs Xsabo Power Limited HCMA No.046 of 2021supports the above position where it was held that the remedy nce the suit abates

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under O. XIA Rule 7 of the Civil Procedure Rules as amended is to file <sup>a</sup> fresh suit subject to the law of limitation.

Therefore, Counsel's argument about mistake of Counsel are immaterial to this application. The Application is clearly improper before this Court and an abuse of Court process which ought to be dismissed summarily which I hereby do.

As regards the prayer for stay of execution, the same cannot be granted since it's not arising from any existing suit or application pending in this Court. P

This prayer to cannot be granted.

Accordingly, the application is hereb ismissed with costs.

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TADEO ASIIMWE

JUDGE

2210412024.