Kanyago v Cairo Bank Uganda Limited & Another (Miscellaneous Application 2790 of 2023) [2024] UGCommC 202 (15 July 2024)

## 5 **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **COMMERCIAL DIVISION**

#### **MISCELLANEOUS APPLICATION NO. 2790 OF 2023**

#### **(ARISING FROM MISCELLANEOUS APPEAL NO. 1559 OF 2022)**

#### 10 **(ARISING FROM MISCELLANEOUS APPLICATION NO. 1100 OF 2022)**

#### **(ARISING FROM HCCS NO. 0680 OF 2022)**

**JOHN KANYAGO :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

**1. CAIRO BANK UGANDA LIMITED :::::::::::::::::::::::::::::::::: 1ST RESPONDENT 2. EXIM BANK UGANDA LIMITED :::::::::::::::::::::::::::::::::::: 2ND** 15 **RESPONDENT**

#### **Before Hon. Lady Justice Harriet Grace Magala**

#### **Ruling on Preliminary Objections**

#### 20 **Background**

The Applicant filed *HCCS 0680 of 2022: John Kanyango versus Cairo Bank Uganda Limited, Exim Bank Uganda Limited & Nabbale Teopista.* The key issues for determination in the main suit are whether the suit land is family property or matrimonial property, whether the suit land was lawfully mortgaged and whether

25 the Plaintiff was entitled to a permanent injunction.

The Applicant also filed *Miscellaneous Application No. 1100 of 2022: John Kanyago versus Cairo Bank Uganda Limited & Exim Bank Uganda Limited.* The Applicant was seeking for orders of a temporary injunction restraining the Respondents, their agents, employees or any person claiming title through them

30 from selling or evicting the Applicant from properties comprised in Block 245 Plot

5 3180 land at Bunamwaya, Block 244 Plot 541 land at Kabalagala and LRV 3271 Folio 6 Plot 3 land at Martin Road. This application was heard and determined by the learned Ag. Assistant Registrar, Her Worship Nakitende Juliet.

The Respondents, dissatisfied with the decision of the learned Registrar in Misc. App. No. 1100 of 2022 filed *Miscellaneous Appeal No. 1559 of 2022: Cairo Bank*

10 *Uganda Limited & Exim Bank Uganda Limited versus John Kanyango*. The Appeal was brought under **Order 50 Rule 8 and Order 52 Rules 1,2 & 3 of the Civil Procedure Rules; and section 98 of the Civil Procedure Act.** This Court in its decision delivered on the 9th day of November 2023 found that:

*"This appeal partially succeeds and the Respondent is hereby ordered to pay* 15 *the Appellants Ugx. 5,544,389,946/= being 30% of the outstanding loan amount of Ugx. 18,481,299,821/= within 30 days from the date of delivery of this judgment."*

The Applicant filed this application on the 20th November 2023 seeking orders for a stay of the execution of the judgment/decree in Misc. Appeal No. 1559 of 2022 20 and preserving the status quo by restraining the Respondents, its employees , agents and any person claiming title from them from evicting the family, tenants or dealing with the properties comprised in Block 245 Plot 3180 land at Bunamwaya, Block 244 Plot 541 land at Kabalagala and LRV 3271 Folio 6 Plot 3 land at Martin Road in any way.

#### 25 **Representation and Hearing**

The Applicant was represented by Francis Sebbowa of M/s Sebbowa & Co. Advocates while the Respondents were jointly represented by Eriya Mikka of M/s MMAKS Advocates.

Page **2** of **4**

When the matter was called for hearing on the 11th 5 December 2023, the Respondents consented to Misc. Application No. 2947 of 2023 for an interim stay of execution pending the hearing and final determination of this application (Misc. App. No. 2790 of 2023).

Counsel for the Respondents raised preliminary points of law which have to be 10 determined before delving into the merits of the application.

## **Determination**

The first preliminary objection is that the law bars any further appeal and as such there is no valid appeal.

The Applicant filed *Civil Appeal No. 1439 of 2023: John Kanyango versus Cairo*

15 *Bank Uganda Limited & Anor.*in the Court of Appeal. This appeal arises out of the judgment that this honorable court rendered in Miscellaneous Appeal No. 1559 of 2022.

# **Section 76 (1) (h) and (2) on Orders from which appeal lies of the Civil Procedure Act states that:**

20 *"(1) An appeal shall lie from the following orders, and except as otherwise expressly provided in this Act or by any law for the time being in force from no other orders -*

> *(h) any order made under the rules from which an appeal is expressly allowed by the rules.*

25 *(2) No appeal shall lie from any order passed in appeal under this section.*

Page **3** of **4**

- 5 Miscellaneous Appeal No. 1559 of 2022 was brought under Order 50 rule 8 of the Civil Procedure Rules. According to section 17(1)(h) of the CPA, an appeal, can therefore not lie from the orders of this court made in Misc. Appeal No. 1559 of 2022. This is buttressed by section 76 (2) of the CPA. I am therefore in agreement with the submission of learned counsel of the Respondents that Civil Appeal No. - 10 1439 of 2023 is expressly barred by the provisions of the CPA as mentioned above. As such, an application to stay the execution of the court orders in Misc. Appeal No. 1559 of 2022 pending the hearing and determination of the Appeal lodged in the Court of Appeal is incompetent. For this reason, therefore, this Application is hereby struck out with costs to the Respondents. - 15 I therefore find no reason to determine this application on its merits given that the preliminary objection has disposed of it.

# **Signed and dated at Kampala this 15th day of July 2024.**

**Harriet Grace MAGALA**

**Judge**

**Delivered online (ECCMIS) this 26 th day of July 2024.**