Katabarwa v Wakisa and 3 Others (Miscellaneous Application 78 of 2024) [2025] UGHC 99 (10 February 2025)

Full Case Text

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT HOIMA

#### MISC. APPLICATION NO. 78 OF 2024

(Arising from Civil Suit No. 60 of 2023 (formerly MSD C. S No.084 of $2022)$

KATABARWA JOSEPHINE ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. WAKISA FRED - 2. KIIZA ROBERT - 3. KAROLI LWANGA CHARLES - 4. KIIZA XAVIER JOSEPH ::::::::::::::::::::::::::::::::::::

Before: Hon. Justice Byaruhanga Jesse Rugyema

# **RULING**

- This Application was brought under S.98 CPA and O.9 r.23, O.52 $[1]$ rr.1,2 & 3 of the CPR for orders that: - 1. The dismissal of HCCS No.151 of 2022 be set aside and HCCS No.151 of 2022 be reinstated and heard on its merits. 2. Costs be provided for. - The Application is based on grounds set out in the Affidavit of $[2]$ **Katabarwa Josephine**, the Applicant which are as follows: - 1. That she an elderly woman aged 85 years who is frail and who sued the $1^{st}$ – $3^{rd}$ Respondents who are grandchildren for grabbing her land.

- 2. That the suit was dismissed on 20th March 2024 for want of prosecution. - 3. That on the same day, she filed M. A No.46 of 2024 which was dismissed on 22nd April 2024 while she was in court but in the absence of her lawyers, the Applicant applied for reinstatement of the HCCS No.151 of 2022 vide HCMA **No.46 of 2024** which was dismissed for want of prosecution while she was in court in the absence of her lawyers. - 4. That being a lay person who does not know the procedures of court, she is aggrieved by the dismissal order of her application. - 5. That it is just and fair and in the interest of justice that $C. S$ No.151 of 2022 be restored and heard on its merits. - In opposition of the Application, the 3rd Respondent, Karoli $[3]$ **Lwanga Charles,** deposed an affidavit in reply briefly as follows: - 1. That the Applicant's Application is bad in law as the same seeks to reinstate the main suit instead of Application No.46 of 2024 which was for reinstatement of the main suit but was dismissed on $22^{nd}$ April, 2022. - 2. That whereas this court has powers to reinstate the Applicant's suit, the Applicant should not be allowed to abuse inherent powers of the court by allowing her to negligently abdicate her duty to attend court to prosecute her case under the guise of invoking the power of court to reinstate her case. - 3. That the Applicant's constitutional right to be heard should not be used to violate other people's constitutional right to

a speedy hearing by allowing her to negligently fail to prosecute her case.

4. That it is fair and in the interest of justice that this Application is dismissed with costs.

# **Counsel legal representation**

- The Applicant was represented by Mr. Kasangaki Simon of M/s $[4]$ Kasangaki & Co. Advocates, Masindi while the Respondents were represented by Mr. Aaron Baryabanza of M/s Baryabanza & Co. their respective counsel filed Both Advocates, Hoima. the determination this for consideration $\quad\text{in}\quad$ submissions application. - Counsel for the Applicant submitted that the Applicant is a lay $[5]$ person and elderly aged 85 years who is not well versed with court procedures and operations. That on the date the matter was dismissed, the Applicant sat outside court instead of the court room and she was neither informed that court had commenced hearing matters nor did she hear anyone call out people to enter court. Counsel submitted that the Applicant was and is still aggrieved by the dismissal order and prayed that the court should consider this as sufficient reason to reinstate the dismissed suit and have it heard on merit. He relied on the authorities of Andrew Bamanya Vs Shamsherali Zaver, S. C. C. A Civil Application No.70 of 2001 and Ojara Otto Julius Vs Okwera Benson, HCMA No.23 of 2017. - While relying on Section 98 CPA and the authority of Edirisa $[6]$ Kanonya & Anor Vs Nsubuga & Ors, MA No.373 of 2022, Counsel for the Applicant implored this court to exercise its discretion

invoke its inherent powers to set aside the dismissal order and hear the case on its merits.

Counsel for the Respondents submitted in reply that this the $[7]$ Applicant's application was filed in bad faith with the intention of abusing the court process. That the Applicant's main suit was dismissed for want of prosecution and the Applicant immediately filed M. A No.46 of 2024 to reinstate the suit but failed to prosecute the application which was also dismissed with costs on the 22nd day of April 2024. That instead of the Applicant filing an application to set aside the dismissal of M. A No.46 of 2024, she filed application to reinstate the main suit. That the continuous filing of cases and/or applications by the Applicant without prosecuting the same amounts to abuse of court process which this court ought not to permit. 2ndly, that the Applicant's argument that she is a lay person who has no knowledge of the procedures in court, sat outside court instead of sitting inside the court hall is not sufficient cause because the Applicant admitted that she has always done her best to attend court. That this meant that the Applicant knew very well that court business is not conducted outside court where she alleges she was seated on the day her matter was dismissed.

# Whether the Applicant's application for reinstatement of C. S No.151 of 2022 is bad in law.

#### **Back ground**

the sued Applicant/plaintiff the [8] this case. In defendants/Respondents vide Civil Suit No.60 $\overline{f}$ or 2023 (formerly MSD C. S No.084 of 2022) for inter alia, recovery of land, damages for trespass to land, an order for cancellation of title comprised in FRV KIB 3 Folio 2, Block 335, Plot 16 at Masonga for fraud, a permanent injunction and costs. The defendants filed a Joint Written Statement of Defence on 24th October 2022 and on the 20th day of March 2024, court dismissed the suit under O. 9 **r. 22 CPR** which is to the effect that if a plaintiff fails to appear when the defendant is present, the case will be dismissed against the plaintiff.

On the date of the dismissal of the plaintiff's case, the $[9]$ plaintiff/Applicant immediately filed M. A No.46 of 2024 for reinstatement of Civil Suit No.60 of 2023 which was on the 22nd day of April 2024 dismissed for want of prosecution. The Applicant immediately filed this instant Application for reinstatement of C. S No.60 of 2023 which she erroneously referred to as "C. S No.151 of 2022", a suit that never existed in the circumstances of this case.

### Determination

In the instant case, looking at the record, it is apparent that the $[10]$ Applicant's C. S No.60 of 2023 and the application for its reinstatement vide M. A No.046 of 2024 were on the $20th/03/2024$ and $22nd/04/2022$ respectively dismissed for want of prosecution. M. A No.046 of 2024 seeking to set aside the order dismissing the main suit wrongly cited the main suit as C. S No.151 of 2022 which is non-existent under the present parties and her counsel also proceeded to file wrong submissions which were not connected to the instant main suit i.e, C. S No.60 of 2023.

- [11] The same error or mistake was carried forward to the present application where again the Applicant sought to reinstate C. S No.151 of 2022 that does not exist under the present parties. - This Application is therefore in the premises found to be bad in $[12]$ law because the same seeks to reinstate a main suit that did not exist under the present parties. The Applicant ought to have instead applied for reinstatement of M. A No.046 of 2024 which sought for setting aside the order dismissing C. S No.60 of 2023 which was dismissed on 22nd April, 2022. As a result, the Applicant's counsel under the same error also submitted on reinstatement of the none-existing main suit instead of submitting on the reinstatement of M. A No.046 of 2024. - [13] In conclusion, I find that no sufficient cause has been shown of reinstatement of any suit or application before this court. The whole Application is bad in law and devoid of any merit. As a result, it is dismissed with costs to the Respondents.

Dated at Hoima this 10th day of February, 2025.

Byaruhanga Jesse Rugyema Judge