Kensington Africa Limited v Uganda Crop Industries Limited (Miscellaneous Application 898 of 2023) [2023] UGHCLD 377 (11 October 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DIVISION)

## **MISCELLANEOUS APPLICATION NO.0898 OF 2023**

(Arising from Miscellaneous Application No.0643 of 2022)

(Arising from Miscellaneous Application No. 1307 of 2019)

(Arising from Civil Suit No. 510 of 2015)

KENSINGTON AFRICA LIMITED::::::::::::::::::::::::::::::::::::

#### **VERSUS**

UGANDA CROP INDUSTRIES LIMITED:::::::::::::::::::::::::::::::::::: $10$

# Before: Lady Justice Alexandra Nkonge Rugadya.

### Ruling.

This application brought by way of notice of motion under **Sections 82 & 98 of the** Civil Procedure Act cap.71 and Order 46 rules 1 & 8, & Order52 rules 1 & 3 of the Civil Procedure Rules SI 71-1 seeks orders that the ruling and orders of this 15 court dated 6th February 2023 in *Miscellaneous Application No.643 of 2022* be reviewed, and set aside, and that costs of the application be provided for.

The grounds of the application are contained in the affidavit in support thereof deponed by Mr. Kyeyune John Paul, an advocate of the High Court of Uganda practicing with *m/s Nangwala Rezida & Co. Advocates* and counsel for the applicant.

Briefly, that while the applicant is the unsuccessful party in Civil Suit No.510 of 2015 which was determined by this court in *Miscellaneous Application No.1307* of 2019, it has on several occasions applied for the typed record of proceedings in the said matter said matter so as to appeal the ruling to no avail.

$25$

$\mathsf{S}$

That the respondent in a bid to execute the orders of this court filed a garnishee application vide Execution Miscellaneous Application No.199 of 2022 against the applicant and its bank, *m/s Guaranty Trust Bank Limited* and that on 6th May 2022, the applicant was served with a garnishee nisi order by which *m/s Guaranty*

(Juhous

**Trust Bank Limited** was ordered to appear in court on 13th May 2023 to explain why the said order should not be made absolute.

That on 11th May 2023, the applicant then filed an application for stay of execution and an application for an interim stay of execution and that for purposes of seeking

a nearby date for the same, counsel followed up on the applications with the Deputy $\mathsf{S}$ Registrar who had to give the said applications new case numbers before admission.

That the substantive application for stay of execution was allocated *No.807 of 2022*, while the interim application was allocated **No.820 of 2022** and both applications were forwarded to the trial judge after which the applicant through his lawyers applied to the judge for a hearing date for the interim application.

That the trial judge upon confirming the number gave directives for filing and serving the pleadings and written submissions in *Miscellaneous Application No.820 of* **2022** for the interim application which the applicant complied with and even filed an affidavit of service proving that both applications for stay of execution and interim stay of execution had been served on the respondents.

That the applicant continued to use the same case numbers for the routine follow up on the said applications until 15th February 2023 when counsel discovered that the main application for stay of execution had been dismissed on grounds that service of the main application had not been effected, and that the case number had changed

from **807** of **2022** to **643** of **2022**, and that the application for the interim stay of 20 execution had been overtaken by events.

That while following up on the matter on 2nd December 2022 using the new case number, counsel discovered that court had sent directions to the applicant via ECCMIS to serve the application together with written submissions on the respondent but the same had been missed by the applicant due to an unknown number and that parties were confused because the notifications that are received only show case numbers and not the parties.

In addition, that at the time of dismissal of the application for stay of execution, the applicant had already effected service on the respondent and that there are various errors of law and fact apparent on the face of the record thus the applicant is aggrieved by the orders of this court dismissing the main application for stay of execution.

(Juhang

The respondent did not oppose the application despite having been served with the same as directed by this court. In the premises, this application stands unopposed.

The applicant is represented by *m/s Nangwala Rezida & Co. Advocates*. Counsel for the applicant filed written submissions as directed by this court.

#### Consideration of the application. $\mathsf{S}$

I have carefully read and considered the submissions of counsel, the details of which are on record.

The main issue for consideration hereunder is whether there are grounds to merit the setting aside of the dismissal order, and reinstating *Miscellaneous Application*

#### No. 0643 of 2022. 10

It has been established by law and decided cases that in order for an application of this nature to succeed, the applicant should furnish sufficient reasons to enable the court exercise its discretionary power.

In the case of Bishop Jacinto Kibuuka vs The Uganda Catholic Lawyers Society & 2 others Miscellaneous Application No. 696 of 2018, court defined the term 15 'sufficient cause' to mean that;

> 'A party had not acted in a negligent manner or there was want of bonafide on its part in view of the facts and circumstances of the case or the party cannot be alleged to have been 'not acting diligently' or 'remaining inactive.'

In the case before me, the applicant's counsel in his affidavit in support states that he filed an application for stay of execution which was allocated *Miscellaneous* **Application No. 807 of 2022** while the application for an interim stay of execution was allocated *Miscellaneous Application No.820 of 2022*, and forwarded to the trial judge, who then gave directions under the said applications.

That although counsel kept following up on the matters using the assigned numbers, he later discovered that the applications had been dismissed and that they had acquired a new number to wit Miscellaneous Application No.643 of 2022, and that the directions issued by the trial judge were missed owing to the unknown numbers of the files and the confusion from the notifications that only indicated the numbers and not parties.

Wholes

$25$

The applicant adduced in evidence a copy of a letter dated 11th May 2022 marked **Annexure 'C'** requesting a hearing date for the applications in issue.

Whilst counsel for the applicant states that he was not aware of the change in application numbers, the evidence adduced suggests the contrary. According to

- *Annexure 'E'* of the affidavit in support of the application which is a copy of affidavit $\mathsf{S}$ of service, the applicant had in the title of the affidavit indicated that the affidavit of service was in respect of *Miscellaneous Application No.820 of 2022*, but crossed out the same. The deponent of the affidavit further indicates Miscellaneous Application No.643 of 2022. - ECCMIS is an automated system that notifies parties of any document uploaded in 10 real time. It is therefore inconceivable that counsel for the applicant received no notification of the validation of the application and allocation of a different number.

In any case, the alleged confusion arising from notifications indicating only numbers and not parties are not tenable since any recipient of such notification is logically expected to peruse the contents thereof.

I accordingly decline to grant this application. No costs awarded.

Wholf

Alexandra Nkonge Rugadya.

### Judge

11th October, 2023. 20

Delivered by each Oblogy Jelivered Oblogy Julio/2023