Kayondo and 2 Others v Rev. Kakooza and 5 Others (Civil Suit 35 of 92) [1992] UGHC 39 (10 February 1992)

# me Hon. www. Ag. Justice F. M. S. Egonda-Niade

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

### CIVIL SUIT NO. $35/92$

$1.$ MUHAMED KAYONDO KAKUNGULU)

- $2.$ IBRAHIM SEMPEBWA KAKUNGULU ) <pre>::::::::::: RLAINTIFF/APPLICANT</pre> - MUSA JUUKO KAKUNGULU $3.$

#### VERSUS

| 1.<br>2. | REV. POLYCAP KAKOOZA.<br>DR. SULAIMAN KIGGUNDU | | | |----------|------------------------------------------------|--|-------------------------------------| | 3. | HAJI IBRAHIM SEGUYA | | ::::::::::::: DEFENDANT/RESPONDENTS | | 4.<br>5. | SHAFFI MUTEBI<br>SHEIKH AHMAD MUKASA. | | | | $6.$ | HAJI M. SEBULIME | | |

#### **BEFORE:** The Honourable Mrs. Ag. Justice M. Kireju.

## RULING

An application was made by the applicants/plaintiffs. under Or. 37 r. 1(a) of the Civil Procedure Rules, where : they sought a temporary injuction against the respondents/defendants restraining them from administering the estate of the late, Prince Haji Badru. W. Kakungulu of Kibuli, Kampala until final disposal of the main suit and also prayed for the surrender of the probate which was issued to court.

However, at the hearing of the application, Mr. Serwanga Sengendo of Katende & Sempebwa Advocates informed court that they had been instructed by 5 applicants namely the widow, the heir, a daughter and a son of the deceased and also by Hon. Sabalangira Besweri Mulondo, the Clan Leader and the Chairman of the Committe which appointed the defendants to act as executors, to represent them.

He therefore submitted that before the application for the temporary injuction could proceed he wanted to apply

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$.../2$

for an adjournmentf The grounds of the application were that on 7/2/92 the applicants filed a notice of motion **in** which they prayed to be added as party to the proceedings\* That the applicants aver in the notice of motion that **it would** be just for them to be added as co-defendants in ord&r **for** the court to completely adjudicate and settle all questions **in** the suite He therefore prayed that the proceedings be adjourned sq that he could appear and contest the **application** • • for the temporary injunction as his clients felt that they **Sully** instructed ^nd consented to the defendants/responcLonts **to** administer the estate®

Mr® Lutakome, counsel for the applicants opposed the application for the adjdu'rnmerit® "The fa't that there was another application pending before, court should not affj^his application® He submitted that annex. K.3 to the affidavit **in** reply which purports to request for ratification of the errgr jn the letters of administration was brought to court on j/^/92® -That this is an admission on part of the defendants that the document they are holding is wrong® That there is no reason for an adjournment as they ure only asking for the restraint of the defendants from carrying on the administration of the estate. That there were no lawful reasons **for** the **applicants**to be . joined® He prayed that in case the adjournment **is** allowed, an interim order should be issued against the d-afandants while the court continue to look into other proceedings. He further contended that the application was intended <sup>1</sup>

. to delay Lis clients application\*

Mr. Nsambu, couhsel for the respeudents/defendants submitted . that when he filed an affidavit in reply **he** was not aware that M^S Katende . and Ssempebwa Advocates were also inters®t^a.d

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in the case. He conteded that in all Civil Proceedings service of all parties is very important however, hopeless the case of the person might be. He referred me to the case of Maria Nalukugo Vs. Isaac Hategyekimana Civil Appeal No. 719/79 reported in Vol. 9 of H. C. B 1977 at page 71 and in particular page 73 in support of his contention. He particulary referred to para. 10 of the holding which is as follows;-

> " The general rules that in a probate action, just as in any Chvil Litigation, the court must have before it and ensure that all persons whose interests may be adversely affected by the relief claimed are either joined as parties or are made cognisant of the action in order that such persons may be bound by the decision of the court and bring an end to litigation. "

After hearing the submissions by all oounsels, in the interest of justice the party who wishes to be joined to the suit should be given a chance for his application to be heard. But also in the interest of justice since this application for temporary is injunction has already been adjourned before, I shall in the meantime make an interim order, that the executors should suspend any dealings in the estate, the subject matter of this application until the application for a temporary injuction is determined by this court.

The application for adjournment is therefore granted as requested by Mr. Serwanga. This application is adjourned sine die.

M. KIREJU

Ag. $\frac{J \cup D \subseteq E}{12/2/92}$

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