Kato Sulaiman Kiggundu v Registered Trustees of Church of Uganda (Miscellaneous Application No. 256I of 2023) [2024] UGHCLD 304 (5 June 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)

# MISCELLANEOUS APPLICATION NO. 256I OF 2023 (ARISING FROM CIVIL SUIT NO. OO52 OF 2023)

APPLICANT KATO SULAIMAN KIGGUNDU

### VERSUS

#### REGISTERED TRUSTEES OF CHURCH OF UGANDA RESPONDENT

## BEFORE HON LADY -IUSTICE ELIZABETH IANE ALIVIDZA RULING

### REPRESENTATIONS

The Applicant was representcd by M/s Kayondo, Omony & Co. Advocates The Respondcnt was rcprcscnt.cd by M/s ASPA advocates.

### INTRODUCTION

The Applicant brought this Applir;ation undcr Section 6 and 98 of the Civil of the Procedure Act, Scction 33 ot thc Judicature Act and Order 52 llule 1 of the Civil Procedure 1?u,1e.s secking ordcrs that;

- l. Civil suit No. 0052 of 2013 be struck out and dismissed for offending the lis pendens rule . - 2. The costs of thc Application bc provided for.

T'he grounds of this Application arc containcd in the notice of motion and the Affidavit in support of thc Application. l'hc main ground was that thertr was another similar caso Civil suil. No. 537 of 2021 filed by the Respondent.

The Respondent filed an Aflidavit in roply dcponed by Japher Tumuhimbise Mpiriiwe the donec/ holder of powcrs of attorney of the Ilespondent who basically stated that Civil suit No. 5ll7 of 2O21 previously instituted by the Respondent was later withdrawn.

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### RESOLUTION

Both parties filed writtcn submissions that this Court has taken into consideration in determining this Applir;ation.

There is only one main issue? Whether this suit offends the lis pendens rule?

Blacks law dictionary 11th edition defines lis pendens as a pending law suit. Section 6 ot' the Civil Procedure Act cap 282 summarises this principle, it provides;

"No court shall proceed with lhe trial of any suit or proceeding in which the mattet in r.s.sue ls also dircctly and substantially in issue in a previously instituted suit or proceeding betwccn lhe same parties, or between parties under whom they or any of them claim, litigating under the same tit]e where that suit or proceeding is pending in the same or any other court having jurisdiction in Uganda lo grant thc relief claimed."

In the case of Sprinqs International Hotel Ltd v Hotel Diplomate Ltd & Anor (Civil Suit No. 227 of 2011) [20141 UGHCLD 40 B December 2014) Court noted that the party rclying on tho lis pcndens rule has to show that;

- a) The matter in issuc in thc prcscnt suit is also dirtrtly and substantially in issuc in a prcvitlusly institutcd suit or procceding. - b) The previously inst.itutcd suit. or proceeding is bctween the same parties of partics undcr whom they or any of them claim; and - c) The suit or procccding is pcnding in the samc or any othcr Court having jurisdiction to grant. thc reliefs claimcd.

In this case, the Rcspondcnt filod Civil suit No. 537 of 2O21 against the Applicant on the 2"d of Junc 2021 secking among others declaration that the Applicant is a trcspasscr on thc llespondent's land, an eviction and demolition order. On 1 lth Marr:h 2O22, the Plaintiff filcd a scheduling memorandum.

According to anncxturc I3, tho llr:spondcnt on 07rh of Novombcr 20211 wrotc a letter to their lawycrs instrur;tinq t.hem to withdraw civil suit No.5ll7 of

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2021. The lawyers then filcd anncxture C letter dated Bth November 2O23 lo Court seeking to withdraw civil suit No. 537 of 2021,.

I note that the letter was fihd on 17Lh November 2023. Court delivered <sup>a</sup> ruling withdrawing thc suit with costs to thc Applicant on the 15/O3/2O23.

The Respondent also filcd Oivil suit No. 0O52 of 2023 against the Applicant and two others on the 19th J anuary 2o2ll wherein the cause of action against the Applicant and two othcrs is for the unlawful and illegal sale/disposition/possession and or allocation of the Respondents land at Kyanja comprised on plot 5960 Illock 195 FRV 6 Folio B.

It is claimed that the Applicant is a trcspasscr on the suit land and rcmedies sought among others arc; cviction ol the Applicant and demolition of the structures on the suit land. This suit is pending before this court.

Upon perusal of both suits, my lindings arc that it is clear that thc subject matter, and rcliefs sought in bot.h civil suits were thc same. The only difference is that in Civil Suil- No. 0052 ol 2023 that is pending before this Court, the Respondent addcd two morc parties.

It is also a fact that the Ilcspondcnt withdrew civil suit No. 537 of 202L on the 17th of November 2O23 afl,cr this Application was filed. It is only civil suit No. 0052 of 2023 that is currently pending before this Court.

It is my conclusion that in l.hesc circumstances, the principle of lis pendens rule does not apply in this casc sincc Civil Suit No. 537 of 2021 was withdrawn by thc Ilespondcnt with costs to thc Applicant.

This Application is dismissod with no ordcrs as to costs. The parties concluded summons for dircctions, and filed witncss statcments, the file shall appcar for hcaring on 7ti' Novcmbt.,r 2025 at 12.45pm.

) Elizabeth ane Alivid \

Iudge

$5/6/2025$

Ruling delivered on ECCMIS.

mazo

Elizabeth Jane Alividza

$\quad\quad\text{J} \, u d g e$

$5/6/2024$