Kayiira and 2 Others v Haji Lukenge (Civil Suit No. 162 of 2013) [2015] UGHC 18 (8 June 2015)


### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### **CIVIL SUIT NO.162 OF 2013**

## 1. KAYIIRA SENTAMU 2. HAJATI AJIRI NAMAGEMBE

3. KADDU SENTAMU

#### **VERSUS**

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LUKENGE HAKEEM (Administrator of the estate of the late Haji Jaffer Sentamu)

Before: Lady Justice Alexandra Nkonge Rugadya **RULING**

A preliminary objection was raised by counsel for the defendant, that this suit is the latest of suits instituted by or against the defendant and for and on behalf of other parties by the parties herein and is statute barred, incompetent, and an abuse of court process.

Citing section 6 of the CPA he pointed out in his submission that the provisions were mandatory and no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties under whom they or any of them may claim, litigating under the same where that suit or proceeding is pending in the same **Sunction** in Uganda to grant the relief claimed. or other court have $\vec{c}$

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The plaintiffs are represented by lsaac Ekirapa of Messrs Ekirapa & Go Advocates while the defendant ls represented by Alfred Oryem of Messrs Okello Oryem & Co. Advocates.

Both counsel presented their arguments by way of written submissions.

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The undisputed facts ln the mafter before this court is that the defendant one of the sons of the deceased, holds letters of administration for the estate of the late Halfi Jaffer Ssentamu who died intestate on 14s September, 1980. The trant was issued on 21n May,2001.

The plalntiffs contend that the defendant ohained letters of adminlstratlon of'the estate fraudulently; that he had falled to equltably distrlbute the estate; and that he had falled to flle an inventory of the estate. For these rearcns, the plalnttfh seek - among several remedies an order revoking letters of administration granted to the defendant.

Counsel for the defendant, "\*"trn", the same claims are the subject of the counterclalm ln an earller sult filed by the defendant ln the land divislon of the Hlgh @urt and cltes as GS l{o. Zl1 of 2013. According to hlm the sult was flled against one Swaibu Makumbl, pleaded as a beneficiary and on whose behalf and for whose benefit thls lnstant sult was flled on 25h October, 2013, exactly 3 days after he flled his counterclaim ln CS No. 251 of 2013.

In the lnstant case, the same Makumbl Swalbu is clted by the plalntlffs as one of the beneficlaries, in para 4 (b) and ln three Annexures A, B and H of the plalnt, leaving no doubt that the plalnffis ln the lnstent suit and the said Makumbi were lltigatinS and clalming on behalf of each other, in respect of the same subjett matter. The statements of clalm were ldentical as well as the remedles sought. The only dlfference was that parties were simply flllng sults ln dlfferent dlvlslons of the High Court. To support hls contentlon, he mentiones the following suits:

- o 6 ilo. 14 of 2flt9: Muuvoru \*mllc;p and l\*haq Wasswo Scntamu vs Hokcem Lukcnge (Famlly Dlvlslon); dismlssed for want of prosecutisn; - o CS ilo. 3l7l 2OOlz Mymvuru Scmltcgo and ls-haq Wasswa \*ntamu vs Lakcnee Hakccm. The fate of thls suit is unknown and all indications were that lt was pendlng;

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CS No. 126/2010: Muzawaru Sentamu & 4 others vs Hakeem Lukenge was also pending before the Land Division, High Court, Kampala. That the suit was filed by the same plaintiffs herein and by the same counsel herein. The allegations and reliefs sought and therefore the pleadings were similar. The J only difference was the court in which it was filed.

Other cases were: OS No. 14/2009 Muzawaru Sentamu & 4 others vs Hakeem Lukenge, in the Family Division. He contends that all these were filed contrary to section 12 of CPA which provides in mandatory terms that the suits regarding the estate properties ought to have been filed in the locality of the estate, in this case the Mbarara High Court.

According to learned counsel the rationale for section 6 of the CPA was not difficult to find. The law was designed to prevent abuse of court process through filing numerous suits in respect of the same subject matter. The law was meant to maintain consistency and to prevent different courts from coming to different conclusions in respect of the same dispute; to curtail the practice of litigants shopping for orders from different courts in respect of the same dispute and subject matter; and prevent them from filing suits they then do not prosecute simply because the suits are vexatious and frivolous. The law is intended to save time of court by preventing numerous suits and to bring litigation to an end.

In the instant case, he adds, every single mischief behind the law has been flouted by the plaintiffs, on numerous occasions and over a period of almost a decade.

Counsel cited G. V Odunga, the learned author of Odungas Digest on Civil Case Law and Procedure, published by Law Africa in Volume 1, dealing at length wit the subject of abuse of court process.

### Response by counsel for the plaintiffs:

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Learned counsel in reply explains that the plaintiffs filed a suit against the defendant seeking various reliefs including declarations that the defendar fraudulently obtained the letters of administration in respect of the estate of the late Hajji Jaffer Sentamu amongst the beneficiaries of the estate and requestive that this court distributes the estate.

Counsel in his response position that the present suit was not res judicata as p $\frac{1}{2}$ section 7, which accordi


He also cited CA decision in John Semakula vs Pope Paul 1V Social Club Ltd CA No. 67 of 2004 which expounded on the test for a plea of *res judicata* to succeed.

In his submission he argues that the plea of res judicata ostensibly raised by the defendant did not meet the requirements as was passed in the said judgment, in the words of Her Lordship Byamugisha J. A (R. I. P) while commenting on section 7 that the operative words in the section were *heard and finally determined by that* court the provisions of the section are therefore the embodiment of the rule of conclusiveness of judgments with regard to the points that the court decided....

Accordingly, the former suits referred to by counsel had never been adjudicated upon on the merits and that it was only just and equitable that the instant suit be heard on its merits, considering that the plaintiffs were not party to the former suits.

He further explains that in the instant case, CS NO. 162/2013, the action was brought by plaintiffs who were not party to the instant suit, and that there was no proof that they were litigating under the same title, as required by section 7 of the CPA. In this suit, Kayiira Sentamu and 2 others were challenging the defendant's letters of administration over the estate. This to him was a fresh suit and had no bearing with the former suit where the plaintiffs were different and over which a plea of *res judicata* could not hold.

In **CS No. 251 of 2013** the defendant herein and plaintiff in that suit was claiming land comprised in FRV 1217 Folio 5 Block 10 Plot 44 to be part of the estate of the deceased and demanding compensation due from that land from URA to the estate.

According to him, the filing of several suits was not an abuse of court process but i manifestation of the problems affecting the estate and the same should be resolved in one suit and the estate distributed.

That the practice was that the court that issued the letters was the court be: placed to make a decision concerning the revocation of the letters of administration and also deal with the matters relating to the estate. That this cou had power under order 1 rule 10 of the CPR to order the addition of parties so the all issues in a suit can be determined once for all. What was required was for all ti


beneficiaries to elect and be joined together either as plaintiffs or defendants so that the finding by this court can be binding on all the parties.

Allowing the land division to cancel the letters it did not issue and to deal with the estate would be improper since such suits would ordinarily be heard in the family division, for better and efficient administration of justice.

In light of those points he urges this court to find the suit not barred on ground of res judicata and to overrule the preliminary objection, as well as invoke the provisions of order 1 rule 10 of the CPR by adding all beneficiaries to the instant suit either as plaintiffs or defendants so that all issues concerning the estate are addressed as one in a decision binding to all parties.

#### **Resolution by Court:**

The matters as herein raised, can be addressed by this court under two broad issues:

- 1. Whether or not sections $6$ and/or 7 were applicable to the matters presented in this court: - 2. Whether the filing of several suits is an abuse of court process:

## Whether or not sections 6 and/or 7 were applicable to the matters presented in this court:

In addressing this issue, Counsel for the defendant bases his arguments on section 6 of the Civil Procedure Act provides as follows:

No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between the parties under whom they or any of them claim, litigating under the same title, where that suit or proceeding is pending in the same or other court having jurisdiction in Uganda to grant the relief claimed.

That section draws out the lis pendens rule which **Black's Law Dictionary (8<sup>ct</sup>) Edition)** defines as a Latin expression which refers to a pending suit or action. The **Oxford Dictionary of Law (5<sup>th</sup> edition)** also defines the expression in similar terms In the context of section 6 CPA (supra) which encapsulates the principles that underpin the rule, no court ought to proceed with the trial of any suit of proceedings in which the matter in issue is directly and substantially in issue in $\epsilon$

previously instituted suit or proceeding between the same parties, pending in the same or any other court having similar jurisdiction to grant the reliefs claimed.

His learned colleague on the other hand bases his claim, in a written submission, onto the fact that the *res judicata* doctrine would not apply to the matters before this court. He cites section 7 of the CPA which reads:

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title in a court competent to try the subsequent suit in which the issue has been subsequently raised, and has been heard and finally decided by that court.

According to **Black's Law Dictionary 7<sup>th</sup> Edition**, the term res judicata is a Latin word that refers to an issue that has been definitely settled by a judicial decision. The three essential elements as stated by the authors of that dictionary are firstly, an earlier decision on the issue; secondly, a final judgment on the merits and thirdly, the involvement of the same parties, or parties in privity with the original parties. The underlying principle is the conclusiveness of judgments, that there should be an end to law suits.

Conspicuously, counsel's reply was misdirected in as far as it differed from what his learned colleague had in mind. As is clearly evident from the court proceedings and defendant counsel's written submissions, section 6 was the focus of attention in the hearing of the objection.

The two provisions, section 6 and 7 appear in distinct contrast to each other, although the underlying principles are in effect the same. While section 6 refers to court's limitations where there is a previously instituted matter *pending* between the same parties or those claiming under them over substantially the same issues section 7 on the other hand sets out the court's limitations on, previously hear and finalized matters which are substantially the same between substantially the same parties or those litigating under them.

The underlying principle in as far as the two section relate to one another, is what constitutes the spirit behind section 33 of the Judicature Act, Cap. 13:

The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution......grant absolutely or on such terms and conditions as it thinks just, ( such remedies as any of the parties to a cause....is entitled to in respect of any legal

equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided. (emphasis added).

Any court would have been inclined to discard the arguments raised in reply by counsel for the plaintiff, on account of the fact that what ought to have been in contention was section 6 but not 7.

Evidently, there were a number of suits filed over the same estate and it could not be readily established what each of them covered and how far each had gone. Court needed to satisfy itself first, which of these suits could be considered as falling in line with either section or what appropriate remedies could be afforded, upon establishing the status of each. Most importantly, court is mandated by the above cited provision, to avoid the multiplicity of suits over the same or similar areas of controversy arising between the same parties or those claiming under them.

The rationale as it were, of the lis pendens rule as properly raised in the submissions of counsel for the defendant, is that two courts hearing the same matter should not be seen to have been set on a collision course, with a likelihood of arriving at conflicting judgments on the same facts which would cause embarrassment. It would also pave way for a scenario where litigants would choose which judge should hear their case. That section of the CPA embeds this spirit.

I also quite agree with counsel for the plaintiffs when he highlights the test as set by Her Lordship Byamugisha J. A, enumerated thus: is the plaintiff in the subsequent suit or action trying to bring before the court, in another way and in a form of a new cause of action, a matter which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon? If the answer is in the affirmative, the plea of res judicata applies not only to points upon which the first court was required to adjudicate but to every point which properly belonged to the subject matter of litigation and which the parties or their privies exercising reasonable diligence might have put forward of the time...( See John Semakula vs Pope Paul 1V Social Club Ltd CA MS 5747 2004).


I will deal with each suit or proceedings as praniously alleged to have been instituted, in order to determine the applicability or otherwise of the two sections ln que3tion.

# ol Admlnlshatlon Causc No 377 ol2d)7:

Thls was not a sult ln ltself, as counsel for the defendant contends, but an <. Admlnlstratlon Cause underwhich letters were grantedtothe defendant ln respect of the estate of the late Hajl JafferSentamu. The letters were granted on 21n May, 2001.

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Thls matter was filed on 3d July, 2(X)9, ln the family court dlvlslon, by Muzawuru Sentamu and Wasswa Sentamu (both sonsof the deceased), agalnstthe defendant ln thls lnstant case, praylng for nulliflcatlon of the letters granted to the defendant hereln or a revocatlon in the ahematlve. Both referred themselves as ceE?ni trust of or under the estate of the deceased. lt is not clear as to what could have happened to this matter since tfte lqcords avallable, (attached on the submlssion of counsel for the defendant) show that the originating summons were not endorsed by the ,udge. M/S Baklza & Co. Mvocates represented the plalnttfh then. No evldence of further actlon was available on the record.

Counsel for the defendant stated that therc were trf,o separate actlons: CS No. l4l2lm9 and OS No. ItU20O9; that CS No. 14/2(X, was dlsmlssed for wantsof prosecutlon, but he however did not make any effort to avall court wlth any wldence to prove thatfact.

Thls court noted from the infomatlon avalled on the pleadlngs that'the sublect matter ln issue was substantiallythe same as that ln the present suit. llowever, in absence of other evidence to controvert lt, and thls court having falled to trace th€ orlglnal flle from the archlves, arrived at the most vlable concluslon that thls mattet had slmply falled to take off, wlth no basis to determlne that lt had been dlsmlsset fornnnt of prosecution, as alleted by counsel forthe defendant.

frllure by the plalntlffs in that matter to flnalize a sult flled five yearsago, leads tr the concluslon that lt was abandoned but not wlthdrawn. lt was thrrefore sti pendlng and ln llght of which, section 6 of the CPA applied.

l-- ID\ I am therefore inclined to agree with the counsel for the plaintiffs when he cites John Semakula vs Pope Paul 1V Social Club Ltd (Supra) that the words: heard and *finally decided by court* were operative words under that section, rendering that provision and authority as cited inapplicable to *OS No.14/2009*.

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## b). CS No. 126/2010:

In this suit Kayiira Sentamu, Ntwatwa Mohammed and Hajat Ajiri Namagembe, sons and daughter of the deceased instituted proceedings in the family division against Hakeem Lukenge as the administrator of the estate, alleging fraud in obtaining letters of administration and failure to distribute the estate. The suit was filed on 21<sup>st</sup> December, 2010 by counsel Ekirapa himself while Counsel Baingana, at the time, represented the defendants. Similar orders as under OS No.14/2009 were sought.

The said defendant claimed that the estate had been distributed fully under the Islamic doctrine in 1989 apart from plot 52 Masaka road in Mbarara which had been recently discovered.

Counsel for the defendant contends that this suit was still pending before the High Court of Uganda at Kampala, in the Land division. That it was filed by the same plaintiffs as in the instant case and that the allegations and remedies sought and therefore the pleadings in that case were identical. His learned colleague understandably, makes no response to that assertion as he did in respect of other suits.

But yet again, contrary to the contention by counsel for the defendant, that suit was still pending, and as a matter of fact, heard by Justice Moses Mukiibi who on 15<sup>th</sup> May, 2013 ruled that the plaint was bad for failure to show that the plaintiffs are pursuing the implementation of the deceased will. That it was misconceived and the pleadings confused. No relief could therefore be granted to the plaintiffs on the basis of the plaint as it was. In exercising his powers under 0.7 rule 11 of the CPR and section 98 of the CPA he rejected the plaint and struck it out considering It as an abuse of court process.

**Nevertheless, under O 7 rule 13 the rejection thereof could not of its own force** preclude the plaintiff from presenting a fresh plaint in respect of the same cause of **action and that possibly explains why this instant suit was instituted. On account o**

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that fact therefore, this was not a matter as envisaged under section 7 of the CPA where the doctrine of *res judicata* could be applied. The dismissal of the suit, without determining the merits could not have been one of the instances envisaged under that section.

## d). CS No.251/2013:

This suit (also referred to in some pleadings as HCCS 429/2013- perhaps in error) was filed by the defendant Hakeem Lukenge, and instituted in the Land Division, against one Swaibu Makumbi. It relates to land comprised in Murongo, Kikagati Isingiro which was a lease, now FRV 1217 FOLIO 5 PLOT 44 BLOCK 10, land at NYAKAYOJO, NTUNDU, KIKAGATI measuring 259 hectares.

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According to the plaintiff in that suit, the defendant was never a legal representative of the estate of the deceased and could not therefore claim the suit land; was not-entitled to receive any monies out of it as an individual or as a representative as compensation from URA. Further allegations were that, without the consent of the beneficiaries, he had fraudulently acquired the title.

The orders sought under that suit were for the cancellation of the defendant's name as registered proprietor of the land and for a declaration that the administrator of the estate would be entitled to receive the said compensation.

I would have agreed with the learned counsel's submission up to a point; that these appeared to be two separate matters: there was a claim to cancel the title of the defendant as the fraudulently registered proprietor of the suit land under the estate and a claim for compensation was due from URA to the plaintiff. A variety of issues were being raised here. However, quite clearly the plaintiff was a claimant in that suit majorly as an administrator of the estate of the deceased but not as a single owner thereof.

In the counterclaim against him, which Counsel for the plaintiff was well aware of other beneficiaries were added: including Wasswa Sentamu, Senkayi Murshid Saturday Kiwanyi, Addy Sewandagi, Nalukenge Fatuma, Sarah Nankindo, Sarah Namukasa and Kassim Lwere, all claiming that the defendant in the instant suit and plaintiff therein, had fraudulently obtained the letters of administration.

In that very suit a prayer was made for orders that the letters be issued to Is-a hadismissed suit (C Wasswa and Muzawuru Semitego who were the p

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126/2010). As in the instant suit, fraud was imputed against the defendant in the management of the same estate and prayers were made for consequential reliefs, all appearing to be similar.

Counsel for the defendant requests this court to strike out the instant case since the plaintiff filed it knowing fully that there is a similar suit pending in a court of $\epsilon$ competent jurisdiction, swearing an affidavit to the effect that there is no other suit pending. That, according to him was an abuse of court process. He failed to see how a consolidation would be useful as the solution to this matter, considering that the hearing of CS No. 251/2013 had already commenced and was intended to resolve all the issues raised in the instant suit.

The attention of this court was also drawn to the authority in Kenya Re-insurance Corporation vs Adda Okello Owuor, Kisumu High Court CA No. 17 of 2005: in the words of Warsame, J:

Where the plaintiff filed numerous suits which revolve around the same issues, such conduct speaks of bad faith and the respondent was not entitled to an order of injunction and an application for injunction was incompetent, frivolous vexatious and an abuse of process of the court and was meant to vex the appellant and abuse the judicial process.

In the case Leonard Onyancha vs Post Bank Credit Ltd Kisumu High Court Civil Case **No. 396 of 2000 LLR** in the words of Tanui J:

Where the plaintiff files a suit knowing that there is similar suit pending in a court of competent jurisdiction and swears a verifying affidavit to the effect that there is no other suit pending that amounts to abuse of the court process and the suit is struck out

In reply to that point of contention his colleague, argues that under $C$ . No.251/2013, the plaintiff Hakeem Lukenge was claiming land to be part of the estate of the deceased and demanding compensation due from that land from UR/ for the estate. While in the present suit the plaintiff were challenging th defendant's letters of administration over the estate. The present suit wa completely fresh, with no bearing with the suit before the land division and the the plea of *res judicata* could not hold.

I disagree with learned counsel for the plaintiffs for two reasons. The first is th his colleague, as earlier pointed out, never at any point raised any arguments abo the applicability of section 7 of the CPA. It only comes up to in the determination

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of whether or not any of the earlier suits had been concluded. Having established that none so far had been concluded, section 7 thereupon now becomes totally irrelevant to the arguments under the point of law as raised in this court.

Secondly, in the counterclaim to CS No. 251/2013 it cannot be missed out that nearly all matters that had been a subject of disagreement in the OS No. 14/2009 were brought out. As rightly pointed out by counsel for the defendant I find little difference in the reliefs claimed in the pleadings, the counterclaim under CS 251 of 2013 and those specified under CS No. 162 of 2013. All these can be resolved in the suit before the High Court in the Land Division. In my view, the points upon which the first court was required to adjudicate and all others which properly belonged to the subject matter under litigation and which the parties or their privies exercising reasonable diligence might have put forward at the time could well be determined in the earlier suit.

The test to me for the *lis pendes* rule to apply, and it is my view that it does in this case, is that the expression same parties cannot be given a strict interpretation to mean all parties. It cannot be said therefore that where the same parties are not exactly all the parties in number they are therefore different parties. To apply that strict interpretation to that rule would lead to absurdity.

I am supported in this view by the ruling in Springs International Hotel Ltd vs Hotel Diplomate Ltd and Bonney Katatumba CS No.227 of 2011. Hon Mr. Justice Bashaija K. Andrew in that case adds: Even if the same parties(as in numbers) in the earlier suit do not all appear in the subsequent suit, (or the other way round) it would not make the same parties in the earlier suit that appear in the subsequent suit to be different parties, because they are not.

The test in the rule relates to whether the parties in the previous suit are *directly* and substantially the same as in the subsequent suit, and the answer in this case is in the affirmative.

The circumstances of this case leave no doubt in my mind that there appeared $t$ be some deliberate attempt to make this court believe that these were differer parties and/or different actions, by hiding the interests of the beneficiaries behin those named as parties, under whom they were litigating. The glaring fact was the there was a counterclaim under CS No. 251/2013, a response to whic

. counterclaim would be the same or simllarto any of those pendlng ln all the sults a sofarfiledagalnstthedefendant.

ln additlon, the benefits from a successful counterclaim were not only lntGnded for the counterclaimants therein but for all the beneficiaries of the estate; rnd that to me was the ultlmate test which defined the applicability of the lis pendens rule ln thls case.

## 2. Whdher the fillng of scvctzl sults ls on obusc of couft procr;ss:

Section 33 of the Judicature Act as stated earlier, empowers court ln lts admlnlstratlon of justice to, as much as possible, avoid multlplicity of suits. In Atfrmqf Gcnctu,l vs tomes Ma\* Konqa & firor SCCA No.t ol 2ilt4, Mulenga JSC (R.l. P) ln the lead Judgment concurred wlth the definltlon of abuse of court process as proffered by authorc of BlacKs Law Dictionary (6rf'Ed) and held that:

lor on lmgopcr pt rW or <sup>o</sup> WrW tor whldt ttc pmes mr ast ffilbl,f,d. til'tTa ttL!

The learned justice went further tolttate that:

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<sup>A</sup>trdlfu oM or rc9ot prw @nt rltna tlln lrlrll em\*ys lt lot otrp unlowlu, obtrril, not t p pttrry rtrdr b ttrErrrdcd bl tov b clfu ln oths wotda, prre+lr;lon ol ,L

It ls my consldered oplnlon that one such lnstance of potentlal abuse lles ln the flllng of a multlpllclty of sults ln court. Therefore when the above enunciated prlnclples are applled to facts ln thls case, lt ls doubtless that there was an attempt to shop around for forums in the two separate dlvlslon of the Hlgh Courtr Botl' Courts ln whlch the serreral suits were filed have concurrent lurlsdlctlon. The plaintiffs were acutely alive to the fact that there was another pending suit.ln the Land Divislon as well as an unooncluded case OS 14/2mg In the Famlly division wlth partles and lssues substantially the same as ln the lnstant case.

The plalntlff knew or ought to have reasonably known that the resolutlon of th, issues would finally and conclusively bring to an'end any other lssues ln th subsequent sult. The potentlal danger could not have escaped the plalntlffs' min that there could be turo varying decisions on the same issues delivered by th dlfferent courts.

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It was not enough to mention by way of justification that the filing of several suits was a manifestation of the problems affecting the estate. Furthermore, the argument is not tenable that it is a rule of practice that a court which issues the grant is the court best placed to make a decision concerning the revocation of the letters and deal with the matters regarding the estate. For if that was to be the case, the plaintiff's counterclaim should never have, in the first place been filed in the Land Division. It could have been instituted as a separate action in this court.

A counterclaim was a cross action which even if the main action was to collapse. would still stand as an independent action. If the counterclaimants believed that they had a valid cause of action against the defendant in the counterclaim, there would not have been any justification to bring a separate action on account of that fact. The counterclaim must be of such nature that the court would have jurisdiction to entertain a separate action. [Karche vs UTC [1967] EA 744.]. That point also puts to rest the argument by his colleague on the question of filing the case in Mbarara and the application of section 12 of the CPA, which if he had wanted counsel for the defendant could have raised earlier in his response to the counterclaim under the on- going suit. If the question of jurisdiction arises in the instant case, it can be argued that it does equally arise in the pending suit which as counsel for the defendant counsel rightly claims would address the matters in the instant suit. The court handling the matters in the ongoing suit, CS No. 251/2013 was competent to handle the question of jurisdiction if raised at the appropriate time.

On the request by counsel to have the two CS 251 of 2013, and CS No. 162 of 2014 consolidated, I can only state that a consolidation by this court would only be possible if both were pending before this very court. The court in the Land division cannot be said to be same as this court, but rather, a court of similar jurisdiction and enjoys its independent position and mandate to order so. I would consider it inappropriate for this court to call for a file on a matter instituted *earlier* in another division which has similar jurisdiction. Counsel for the plaintiff made a decision and filed the counterclaim in that division, that court did not dislodge it and so counse cannot therefore be heard to claim that it was not the appropriate court.

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Most importantly, for a party to invoke the powers of court to order a consolidation of suits, the correct procedure ought to have been, in mandatory terms, by summons in chambers (See Orders XI Rules 1 and 2).

In my view, any further delay for the hearing of the earlier suit may end up jeopardizing the interests of the original parties to that suit and consequently those in the instant suit, a situation that cannot be condoned by this court.

I am thus satisfied that OS No. 14/2009 and CS 251/2013 are for the purposes of the rule in section 6 pending in the court having jurisdiction to grant the reliefs claimed, making it imperative for this court to consider the instant suit as an abuse of court process which cannot be ignored.

In light of the above findings, the **CS No. 162 of 2013** is struck out with costs to the defendant.

In passing, however, I must categorically state that due diligence would have been expected of both counsel who ought to have gone a step ahead to provide this court with more complete and accurate information concerning the status each of the pending matters; and this could have saved court's time and that of the aggrieved parties. Unreliable, incomplete information in one suit or two suits could well have easily provided a fertile ground for the misearriage of justice in pending in each of these suits. or related suits, to the possible detriment of the parties

Alexandra Nkonge Rugadya Judge


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