Kawesa and Others v Commissioner Land Registration and Others (MISCELLANEOUS APPLICATION NO, 3342 OF 2024) [2025] UGHC 222 (1 January 2025)

# THE REPUBLIC OF UGANDA THE HIGH COURT OF UGANDA AT KAMPALA (LAND DrVrSloN) MISCELLANEOUS APPLICATION NO, 3342 OF 2024 (ARTSTNG FROM C|VIL SUrr NO. 1s4 OF 2009 CONSOLIDATED WlrH CIVIL SUlr NO 211 OF 2012l.

- 1. KAWESASAMUEL - 2. JAMES KISENYI - 3. RICHARD KIMEZE WALUSIMBI - 4. PHEONAWALUSIMBI - 5. DAPHINE WALUSIMBI APPLICANTS

#### VERSUS

- 1. COMMISSIONER LAND REGISTRATION - 2. KADDU GODFREY - 3. SENTAMU SOLOMON - 4. FREDDIESSENGOBA - 5, NANTUME ROSEMARY - 6. NATIONAL AGRICULTIRAL RESEARCH ORGANISATION : : : : ::: RESPONDENTS

### BEFORE: HON JUSTICE DR. FLAVIAN ZEIJA

### RULING

The Applicants herein brought the instant application by way of Notice of lvotion Under section 33 of the Judicature Act, section 98 of Civil Procedure Act, Order 43 Rule 4 (1, 3) of the Civil Procedure Rules for orders that;

- a) The Execution of the Judgement & Decree in High Court Civil Suit No, 154 of 2009 consolidated with Civil Suit no. 21 1 of 2012 be stayed pending the hearing and determination of Civil Appeal No. 1022 of 2024 in lhe Court of Appeal. - b) Costs of this Application be provided for.

The grounds in support of this application are set out in the affidavit in support deponed by James Walsuimbi aka James Kisenyi and briefly that;

- 1. Judgement was delivered by this Court vide Civil Suit no. 154 of 2009 consolidated with Civil no. 211 ol 2012 which imputed fraud onto the 1sr, 2nd 3rd. 4r, 5rh & 6rh Appellants and impeached the certificate of title of all land comprised in Busiro County Black 260 Plot L lt also ordered cancellation of the entry of the 2to, 3rd, 4rh, sth Appellants, a permanent injunction, payment of UGX 500,000,000 (Uganda Shillings Five Hundred l\,4illion), interest at cou( rate till payment in full and costs of the suit. - 2. The Applicants being dissatisfied with the whole judgement of the Trial Court filed Appeal No. 1022 ol 2024 in the Court of Appeal which has been served on the Respondents. - 3. The Respondents extracted a decree and the same was served onto the Applicants on the 4rh day of Dec embet,2024. - 4. The Applicant's civilAppeal No. 1022 of 2024 has a high likelihood of success. - 5. The 1n 2nd 3d. & 4th Respondents have no capacity to re-pay the Ground rent of 73 (Seventy-Three) years, to the 2nd .3rd, 4rh srh Applicant in the event that the 51h Respondent pays the same to them and costs of the suit in case the Appeal is successful, - 6. The srh Respondent not being a business entity have no capacity whatsoever to repay the decretal amount of UGX 500,000,000 (Uganda Shillings Five Hundred lVillion) and costs to the Applicants in case the Appeal is successful. - 7. The order of eviction from the suit land granted by this honorable court affects third party persons who stay on the suit land and were not party to the suit. - 8, The order of impeachment of the duplicate certificate of title on the basis of noneexistence of inskument number KLA 34226 affects other third parties who are the owners of 100's of duplicate certificates of title which derive their existence from the said instrument measuring approximately 314 acres, - L The Applicants and other persons still at large shall suffer irreparable damage and loss if the execution proceeds. - 10. The Applicants have the capability to pay the decretal sum incase the Appeal fails, - <sup>1</sup>1. The instant Applicants are ready to provide security for due performance of the Decree or order as may ultimately be binding upon them. - 12. The Balance of convenience lies in favor of granting the instant application and it is lust and fair to all parties that this application be allowed.


The grounds in opposition to the application by the 2M, 3rd, 4th and 5'h are contained in the affidavit in reply deponed by Kaddu Godfrey while those of the 6th Respondent in the affldavit deponed by Dr. Yona Baguma. Briefly, they are among others, that;

- 1. The application is frivolous, bad in law, brought to this court in bad faith in as far as it is premature, speculative and as such lacks any legal merit. - 2. Both raise a preliminary oblection that the current application is unmeritorious and frivolous in as far as it is premature and speculative. - 3. There is no decree approved and signed by this Honourable Court in as far as both Counsel for the Applicants and the 1st respondent declined to approve the decree without reason. - 4. Execution of a decree has to be commenced by a formal application for execution, and none has filed in court. - 5. None has filed, let alone taxed, a Bill of Cost in the matter, and as such, the current application is premature at best and speculative at worst. - 6. The Applicants have neither demonstrated any serious threat of execution to any of the respondents, nor have any execution proceedings been commenced in this Court, - 7, Further, it is not true that the applicants have been in possession of the suit land or the Certificate of Title. - 8. That the interests ofjustice require that this Application is dismissed with costs and, as the same is being used as a machination to abuse the court process and deny justice to the Respondents.

## Representation

The Applicants were represented by lv/s Hilal & Co. Advocates. M/s Mukiibi, Kyeyune & Co. Advocates represented the 2nd, 3rd,41h and 5rh Respondents whereas Munanura-luugabi & Co. Advocates represented the 6rh Respondent. The 1st Respondent did not file a reply. all Counselfiled written submissions which I have duly considered but I will not reproduce

### Preliminary objection.

Counsel for the 6rh respondent raises a preliminary objection that the current application is premature and speculative in so far as none of the respondents have ever filed any application for execution or even filed a Bill of Costs and most importantly, there is no approved Decree of Court to execute. The same preliminary objection was raised by counsel for the 2nd, 3rd,41h and srh defendants


Both counsel submitted that execution proceedings are commenced by a formal application before the Court, and yet, in the instant case, there is no such application, and as such, it would be misleading for the Applicants to allege that there is a threat for execution without proving such an application is in Court. Counsel for the 6'h respondent cited the case of Orienf Bank Ltd Vs. Fredrick J. K Zaabwe & Anor SCCA IVo. 19 of 20i7 as authority that without a decree approved by the parties and endorsed by this Honourable Court, and a formal application in court to commence execution proceedings, it would be improper for the Court to grant an Application of this nature because it would be speculative and premature.

0n the other hand, counsel for the Applicants submitted that this application is neither premature, abstract or academic as interpreted by the Respondents because in their own affldavit in reply specifically paragraph 8 (a & b) they admit that they started on the process of execution by extracting the decree in respect of the Judgment delivered on the 26rh day of November, 2024. In reference to the facts at hand, the Respondents through their advocates duly extracted the decree and sent it to several parties in the matter to approve and also have since filed it with the Registrar of the High Court. The loosing pa(ies declined to approve the extracted Decree which was right because it didn't fully reflect the Judgement.

That a decree was extracted by the Respondents whether endorsed or not but it was extracted thus in itself it is a step to execution process especially in a judgement which has selfexecutory orders that can be executed at any-time without any notice to the Applicants or need for an application to be filed.

Counsel for the Applicants cited the authority of Kwesiga James Vs Mugisha Robert HCMA NO. 065 of 20.l9 and lsaac W. Ochieng & Ano Vs Sarah Nakyobe HCMA No. 1619 of 2021 to submit that Courts have stated that before an application for stay is considered, the Applicant must prove that there are etforts to execute the Decree from which an appeal was made or that orders issued are self-executing.

Having considered the submissions by all Counsel, I am not persuaded that there is justification for bringing the instant application at this stage. I do not, with respect, accept that it is proper to institute this type of application when there is no evidence of any application for execution of a decree embodying the decision of the court has been approved. As conceded by both Counsel, there is no decree approved/endorsed by this court in High Court Civil Suit No. 154 of 2009 consolidated with Civil Suit no. 2'1 '1 of 2012. Therefore, this Application is not

proper since no execution is threatened or in progress to be stayed. Any order of the nature sought is speculative. Consequently, this application lacks merit. I dismiss this Application with Costs to the 2nd,3rd,4rh,srh and 6rh respondents.

I so order.

Dated at Kampala this day of 2025.

Flavian Zeija (PhD) PRINCIPAL JUDGE