Katarikawe v Kanakulya and 3 Others (Civil Revision 8 of 2023) [2024] UGHC 508 (13 March 2024)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MPIGI

# REVISION APPLICATION NO. 008 OF 2023

(Arising from Miscellaneous Application No. 53 of 2022 and Civil Suit No. 002 of $2020$ )

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KATARIKAWE MARY SALOME APPLICANT

**VERSUS**

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1. KANAKULYA MUSA

2. NANKYA REGINA

3. TWENYUMIZE LAWRENCE $-10$

4. MATEGA RICHARD

# BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

#### **Ruling**

The applicant brought the instant applicant by way of Notice of Motion under $15$ Order 52 Rules 1 and 2 of the Civil Procedure Rules and Sections 83 and 98 of the Civil Procedure Act against the respondents for orders that;

1. The decision or order for stay of execution granted by the trial Magistrate Grade 1 Nsangi, Her Worship Pamela Muhwezi B., be revised and set aside.

2. Costs of this application be provided for.

The application is supported by an affidavit sworn by the Laura Tumwesigye for the applicant.

The application was opposed through an affidavit in reply sworn by Matega Richard, the 4<sup>th</sup> respondent on behalf of all the respondents.

Brief background: $25$

> The applicant sued the respondents vide Civil Suit No. 53 of 2022 in the Magistrate's court of Nsangi for trespass to land. The suit was heard and determined on the 28<sup>th</sup> September 2022 in the presence of both parties.

On the 5<sup>th</sup> October, 2022, the respondents' lawyers filed a letter requesting for the certified record of court proceedings and a typed judgment and also a Notice of 30 appeal which were served on the applicant's lawyer.

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On the 11<sup>th</sup> October, 2022 a decree was extracted and a Notice to show cause why execution should not issue was issued to the respondents requiring them to appear on the 17<sup>th</sup> October, 2022 to show cause why execution should not be issued against them. This was before a typed copy of the judgment could be availed to the respondents.

Upon learning about the Notice to show cause why execution should not issue, on 27<sup>th</sup> October, counsel for the respondents filed miscellaneous applications No. 53 and No. 54 all of 2022 seeking an interim order and an order for stay for stay of execution respectively.

On 22<sup>nd</sup> February, 2022, the Magistrate granted the application and stayed $10$ execution in order for the respondents to file their application for stay of execution before the Registrar High Court for only 30 days.

On 21<sup>st</sup> March, 2023, the instant application was filed, 29 days after the order was issued and was left with one day to lapse.

Representation: 15

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Mr. Lawrence Tumwesigye appeared for the applicants while Mr. Kabiswa Hillary appeared for the respondent. Both parties filed written submissions.

### Submissions:

Counsel for the applicant submitted that the Magistrate had no jurisdiction to order stay of execution of his/her decrees or orders pending appeal to the high 20 court as there is no enabling law for such procedure. That in the instant case the decree was passed by the Magistrate on 28th September, 2022 and the appeal by Memorandum of appeal was filed on the 12<sup>th</sup> June, 2023, 9 months later. That this means that on the $22^{nd}$ February, 2023 when the Magistrate made the order of stay of execution, there was no appeal pending before this court, and there would not $25$ be any because it was beyond the mandatory 30 days within which to file the Memorandum of Appeal.

Further, that for stay of execution to be granted there should have been a pending appeal with a likelihood of success. (See: Lwanga Ben Mberegenya v. Kakande

Aloysius, H. C. M. A No. 1181 of 2017). That in the instant case there was no 30 pending appeal at all. Since a Notice of appeal does not initiate an appeal in the high court. Thus, the Magistrate acted without jurisdiction in granting the application with no pending appeal before the High Court. As such her decision should be revised and set aside with costs.

Counsel for the respondents on the other hand raised a preliminary objection to 35 the effect that the order sought to be set aside was issued for only 30 days and it

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was to lapse on the 22<sup>nd</sup> March, 2023. That the order the applicant seeks to set aside has since lapsed and thus there is nothing to be revised or set aside. That the instant application is a mere moot and prayed that it be dismissed. Counsel relied on the definition of moot according to Black's Law Dictionary, 8th Edition as;

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## "Open to argument, having no practical significance, hypothetical or academic..."

And the case of Minex Karia v. Attorney General, Miscellaneous Cause No. 208 of 2022, which discussed the doctrine of mootness to the extent that courts do not decide cases for academic purposes because court orders must have a practical effect and be capable of enforcement and cited with approval the case of Julius Maganda v. NRM, Miscellaneous Cause No. 154 of 2010, where court held that;

"Courts of law do not decide cases where no live dispute between the parties are in existence. Courts do not decide cases or issue orders for academic purposes only. Court orders must have practical effects. They cannot issue orders where the issues in dispute have been removed or merely no longer exist."

Analysis of court:

The law:

- Section 83 of the Civil Procedure Act provides that: the High Court may call for the record of any case which has been determined by any subordinate court and may revise the case if that court appears to have done any or one of three things; - a. Exercised a jurisdiction not vested in it by law. - b. Failure to exercise a jurisdiction vested in that court; - c. Acted in the exercise of its jurisdiction illegally or with material irregularity or injustice.

In the case of Magembe Peter v. Ssegujja Richard, Civil Revision No. 0008 of 2021, it was stated that; for a matter to qualify for revision, it must be apparent that it involves a failure to exercise or an irregular exercise of jurisdiction.

Revision does not concern itself with conclusions of law or fact in which the question of jurisdiction is not involved. Dissatisfaction with a decision by a court 30 with jurisdiction in favour of the other party cannot be a matter for revision. (See: Nadiope & 8 Ors v Maluku Development Association Ltd, HCT-04-CV-MA-0073-2010) [2012] UGHC 103 (13 June 2012).

In the case of Kassiano Wadri v. Nuru Juma, Civil Appeal No. 0045 of 2014, it was stated that; 35

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"Once a magistrate's court has determined a suit, it has no residual jurisdiction to reopen the case. However, a judgment debtor may move the court for a stay of execution of the judgment, or for some other order, on the ground of matters occurring after the date on which the judgment takes effect, such as the existence of a pending suit between the parties, and the court may, on terms, make such order as the nature of the case requires. According to section 219 (1) of The Magistrates Courts Act, every suit in the court of a chief magistrate or a magistrate grade one is to be instituted and proceeded with in such manner as is prescribed by rules applicable to suits instituted in the High Court."

Order 22 rule 23 (1) of the Civil Procedure Rules provides for when court may stay execution of a decree by the court to which a decree has been sent for execution and it shall, upon sufficient cause being shown, stay the execution of the decree for a reasonable time to enable the judgment debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or execution of the decree, for an order of stay of execution.

In the instant case, a decree was extracted for execution before the very court in which the application for stay of execution was filed. In an application for execution, the holder of a decree who desires to execute it, shall apply to the court which passed the decree, as was done by the applicant in this case.

The provisions of Order 22 Rules 23(1) of the Civil Procedure Rules allow a party to file an application for stay of execution in the court which passed the decree on appeal. Whereas, the applicant contended that there was no appeal at the time the application was filed since the respondents had not filed a Memorandum of appeal,

in the case A. G Vs E. A Law Society & Another EACJ Application No.1 of 2013 cited 25 with approval in Equity Bank (U) Ltd Vs Nicholas Were H. C. M. A No. 604/2013, it was held that;

### "A notice of appeal is a sufficient expression of an intention to file an appeal and that such an action is sufficient to find a basis for grant of stay *in appropriate cases.*"

The trial Magistrate in the instant case granted the application for only 30 days to enable the respondents to file for a stay of execution before the High Court. Whereas, the applicant argued that the appeal was filed out of time, Section 79(3) of the Civil Procedure Act is to the effect that the time taken to prepare a certified copy of the record of appeal is not reckonable in computation of the thirty days within which an appeal should be filed. Thus, time starts running when a certified copy of the record of proceedings is availed to the party appealing.

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Counsel for the applicant cited Section 330 of the Magistrate's Court Act which does not exist.

In conclusion, the trial Magistrate in the instant case did have jurisdiction to grant the application for stay of execution as provided for under Order 22 rule 23 (1) of the Civil Procedure Rules. Therefore, she did not act illegally.

Secondly, the application for stay of execution was granted for only 30 days which have since lapsed and this application is therefore overtaken by events.

This application is found to lack merit and is hereby dismissed with costs.

I so order.

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Right of appeal explained. 10

OYUKO ANTHONY OJOK

JUDGE 15

13/3/2024