Kategaya Betsimbire v Sebaliga and Another (Civil Application 288 of 2019) [2019] UGCA 2108 (2 December 2019)

Full Case Text

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THD REPUBLIC OF UGANDA

## 10 IN THE COURT OF APPEAL OF UGANDA

#### AT KAMPALA

## Civil Application No. 288 of 2OL9

15 Joan Betsimbire Kategaya Applicant

#### versus

Jacob Sebaliga (Being sued through his lawful Attorney John Rwalanda) : : : : : : : : : : : : : : : : : : 3 : : : : : : : : : : : : : : : : :Respondent

Coram: Hon, Justice Remmy Kasule, Ag. JA

# Ruling

25 The applicant under Rules 2(2), 6(2)(b), 43(1)(2) and 44 of the Rules of this Court seeks an Order that the execution of the decree in Civil Suit No. 414 of 2O1O, be stayed pending

determination of the applicant's appeal and that the status quo of the suit property comprised in LRV 453 Folio 2, plot 48O Muyenga, Kampala, be maintained pending disposal of the substantive Appiication to stay execution No 287 of 2019.

The application was opposed by the respondent.

Learned Counsel Tabaaro Edwin appeared for the applicant while Kato Ssekabanja was for the respondent.

High Court Civil Suit No. 634 of 2OO7 Jacob Sebaliga vs Joarl Betsimbaire Kategaya the Registrar of Titles and Amos Nzei, as the third party, is the suit in which Judgment was delivered on 22.08.2019 by His Lordship Henry L Kawesa of the High Court of Uganda at Kampala. The Suit had, as its subject matter, a dispute, as to who of the applicant and the respondent and the other parties to the suit, was the true lawful owner of the suit property comprised in LRV 453 Folio 2 Plot 48O Muyenga, Kampala. The High Court ruled in favour of the respondent against the Applicant. There is no High Court Civil Suit No.414 of 2010, amongst the parties to this application; and in which His Lordship Henry I. Kawesa delivered Judgment against the applicant in favour of the respondent. 35 40 45

However, the applicant asserts on oath in her pleadings that she lodged a Notice of Appeal and served a copy of that Notice of Appeal to the respondent to this application intending to appeal

the Judgment delivered in High Court Civil Suit No 4L4 of 2O7O.

The applicant, at the hearing of this application, took no steps at all to rectify andf or clarify which suit was the subject of the Notice of Appeal, whether by seeking permission of Court to

- 55 amend the pleadings or act otherwise. Learned Counsel lor the applicant just remarked to Court that the matter as to which one was the correct suit was not a serious one. This Court therefore holds that since High Court Civil Suit No. 414 of 2010 is not the suit between the applicant and the respondent, this same suit therefore cannot be the subject of the Notice of Appeal constituting the basis upon which the applicant is seeking an order to stay execution ernd to maintain the status quo of the suit property. The applicant has no Notice of Appeal todged in this Court arising from High Court Civil Suit No. 634 of 2OO7. 60 - 65 10 75 Further, Rule 42(1) of the Rules of this Court require the applicant to l-rrst have pursued this application in the High Court, and if the High Court, refused to grant or clelayed in determining the same, then to bring the same in this Court or to appraise of this Court any special circumstances as to why this Court should entertain this application, without the applicant having first pursued the same in the High Court. See: Lawrence Musiitwa l(yazze vs Eunice Busingye, Supreme Court Civil Appeal No. 18 of 1990. See also: Court of Appeal Civil Application No. 147 of 2Ol4: Aids Health Foundation vs Dr. Stephen Mirembe Kizito.

The Applicant offered no explanation, let alone any justilication at all, for not complying with Rule a2(l) of the Rules of this Court.

By reason of the two reasons stated herein above, this application is hereby held to be incompetent in law and in fact. The same is hereby dismissed with costs to the respondent. 80

It is so ordered

$\circ$ Dated at Kampala this...... $\frac{20}{2019}$ day of $\dots$ $\mathcal{A}$

$\mathcal{U}_4, \mathcal{O}_4$ Remmy Kasule Ag. Justice of Appeal