Kiggundu & 7 Others v Kiyaga (Miscellaneous Application 551 of 2024) [2024] UGHCFD 58 (27 September 2024)

| | THE REPUBLIC OF UGANDA | |----|----------------------------------------------------------| | | IN THE HIGH COURT OF UGANDA<br>AT KAMPALA | | | (FAMILY DIVISION) | | | MISCELLANEOUS APPLICATION NO. 0551<br>OF 2024 | | 5 | (ARISING FROM EXECUTION APPLICATION NO. 0076 OF 2023) | | | (ARISING FROM TAXATION CASE NO. 0036 OF 2023) | | | (ARISING FROM MISCELLANEOUS APPLICATION APPEAL NO. 0001 | | | OF 2021) | | | ARISING FROM MISCELLANEOUS APPLICATION NO. 0178 OF 2021) | | 10 | (ALL ARISING FROM CIVIL SUIT NO. 0073 OF 2021) | | | | | | 1.<br>KIGGUNDU SAMUEL | | | 2.<br>ZALWANGO WINFRED | | | 3.<br>ROBINSON JOSEPHINE PROSSY | | 15 | 4.<br>KIGGWE FRED<br>============ APPLICANTS | | | 5.<br>NAKKAZI BEATRICE | | | 6.<br>NDIKOOYA ROBINAH | | | 7.<br>NABAZIWA ESTHER | | | 8.<br>GUDDIRA BENJAMIN KITYO | | 20 | VERSUS | | | KIYAGA GEOFREY =============================RESPONDENT |

# **BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA**

## **RULING**

#### 25 **Introduction**

This is a Ruling in respect of an Application by Chamber Summons for Orders that:

- (a) The execution of Orders arising from Miscellaneous Application No. 0001 of 2021 (Arising from Civil Suit No. 0073 of 2021) be stayed until the determination of Civil Appeal No. 0330 of 2022 pending before the Court of the Appeal; and - 5 (b)Costs of this Application be provided for.

### **Representation**


When the Application came up for hearing, the Applicant was represented by Mr. Bamulutira Edward of M/S B Edward & Co. Advocates while the Respondent was 10 represented by Mr. Mamawe Bill from Greystone Advocates.

# **The Facts of the Application**

The Application is supported by the Affidavit of Ndikooya Robinah on behalf of all the Applicants while the Affidavit in Reply is deponed by the Respondent. The facts 15 of this Application may be summarized as follows:

That on 29th March 2021, the Applicants filed both Civil Suit No. 0073 of 2021(hereinafter referred to as **the main suit**) and Miscellaneous Application No. 0178 of 2021 (hereinafter referred to as **the temporary injunction Application**) 20 against the Respondent. The temporary injunction Application was ruled in favor of the Applicants and they were awarded costs. The Respondent, being dissatisfied with the Ruling in the temporary injunction Application filed Miscellaneous Application Appeal No. 0001 of 2021(hereinafter referred to as **the temporary injunction Appeal**) which was determined in favor of the Respondent and he was only awarded

25 costs of that temporary injunction Appeal.

That the Applicant then immediately appealed to the Court of Appeal vide Civil Appeal No. 0330 of 2022 (hereinafter referred to as **the Appeal**) challenging all the Orders in the temporary injunction Appeal. Despite the pending Appeal against the Ruling and Orders in the temporary injunction Appeal, the Respondent commenced

5 execution proceedings against the Applicants in this Honourable Court wherein he included costs of the main suit and the temporary injunction Application which were not awarded to him.

That the Respondent's Bill of Costs proceeded in the absence of the Applicants after 10 this Honourable Court issued an Order for substituted service of the taxation hearing notice for unknown reasons; that the costs awarded to the Respondent are manifestly excessive and exorbitant; that the Applicants' Application seeking to file a taxation reference out of time has high chances of success; that the taxing officer illegally awarded the Respondent costs of the main suit and the temporary injunction 15 Application; that if the stay of execution is not granted, the Appeal in the Court of Appeal shall be rendered nugatory, inconsequential and just academic; that the Applicants shall suffer substantial loss; and that the Respondent shall not be prejudiced since the inconveniences that may be caused to him can be compensated in monetary terms.

Applicant's Appeal is futile and does not have any chances of success since they did not seek leave of the Court to appeal the Ruling and Orders in the temporary injunction Appeal which was delivered on 22nd April 2022 as such the said Appeal 25 is a nonstarter having been commenced without the requisite leave; that a pending appeal does not stay execution unless good/just cause is shown for which the Applicants have failed to do; that the award of costs is by the discretion of Court and

**In Reply**, the Respondent while opposing the Application, contended that the

in accordance to the circumstances of the case, the award was just and fair and the Applicants have no justifiable reason as to why they refused to attend the taxation proceedings as such their Application seeking to file a taxation reference out of time is frivolous with no chance of succeeding; that the temporary injunction Appeal 5 which was decided in favour of the Respondent overturned the decision of the temporary injunction Application therefore, the taxing officer exercised their discretion judiciously and by law; that the Applicants will not suffer substantial loss if the application is not granted because they have failed to show that they will suffer irreversible loss and have also not shown any evidence that they will undertake to

10 furnish security for due performance of the Decree or Order.

**In Rejoinder**, the Applicants averred that the Appeal in the Court of Appeal has a likelihood of success, the Applicants having applied for Certified copies of the Record of Proceedings on 25th April 2022, the appeal was filed on time and it 15 challenges the principle of the Supreme Court that a beneficiary can sue to protect and preserve the estate; that Applicants have shown a good cause for stay of execution which is: that the ownership of the suit property comprised in Kyadondo Block 207 Plot 304 has never been determined by a court of competent jurisdiction and that the Respondent was never declared the rightful owner of the suit property 20 so there was no reason for the award of the costs in the temporary injunction Appeal to the Respondent; that the Applicants shall be made to pay the taxed costs that are being challenged and the Appeal shall be rendered useless; that the Applicant's Application seeking to file a taxation reference out of time has high chances of success; that the Applicants ought to be given an opportunity to exhaust their 25 appellate rights before execution of the lower court's orders to ensure justice and fairness is done; that the suit property is an inheritance with special emotional attachments and the recovery of the taxed costs from the Respondent once the

Applicants are successful in the Appeal shall be impossible as the Respondent has not attached proof of his known source of income/employment; and that the Applicants are awaiting for Court's guidance on quantum of the security for due performance of the Order.

#### 5

#### **Issues**

The issues for Court's determination are:

- 1. Whether there is sufficient or just cause to grant a stay of execution in Miscellaneous Application Appeal No. 0001 of 2021; and - 10 2. Whether there are any remedies available to the parties.

# **Before resolving the above issues, I will first deal with the Preliminary Objection raised by Counsel for the Respondent.**

In his submissions, Counsel for the Respondent raised a preliminary objection

15 regarding the competence of this Application and the Appeal that was filed in the Court of Appeal.


While citing Sections 76 and 77 of the Civil Procedure Act (hereinafter referred to as the **CPA**); Order 44 Rules 1 and 2 of the Civil Procedure Rules (hereinafter 20 referred to as the **CPR**); the cases of *Joseph Kaweesa versus Diana Mugisha Civil Appeal No. 0028 of 2013* wherein the case of *Arthur Nuwagaba & Others versus The Owners Condominium Plan Civil Appeal No. 0053 of 2013* was cited; and *Sage Jeremy Wellington versus Balimunsi Sage Catherine Smith & Another Civil Appeal No. 0031 of 2023,* Counsel submitted that the Applicants did not seek leave 25 to appeal the Ruling and Orders in the Miscellaneous Application Appeal No. 0001 of 2022; that the right of appeal is not automatic as leave had to first be sought. That in the absence of leave, the Applicants appeal is incurably and procedurally defective and in essence there is no pending appeal in the Court of Appeal. As such, the Application for a stay of execution is misconceived, misplaced and should be dismissed with costs.


- 5 **In reply**, Counsel for the Applicants while citing Section 2 (d), 72 and 77 of the CPA, the cases of *Grace Namulondo & 3 Others versus Jone Johns Serwanga Salongo &2 Others Miscellaneous Cause No. 0001 of 2019*; *Philip Keipto Chemwolo & Anor versus Augustine Kubende (1986) KLR 495*, *Branco Arabe Espanol versus Bank of Uganda [1999] 2 EA 22* and *Tropical Commodities* - 10 *Suppliers Ltd & Others versus International Credit Bank LTD (In Liquidation) Miscellaneous Application No. 0379 of 2003* invited the Court to overrule the Preliminary Objection because this Honourable Court's decision in Miscellaneous Application Appeal No. 0001 of 2021 is a Decree and not an Order appealable as of right to the Court of Appeal; that the decision disposed of the main suit and the 15 interlocutory matters therein; that the procedures stipulated under the law are to ensure speedy and dispensation of justice, as such, people should not be denied justice because of failure to strictly adhere to the Rules; that an Application can as

well be filed to validate the appeal pending before the Court of Appeal other than denying the Applicants an opportunity to pursue their appellate right and that, the 20 Appeal lodged in the Court of Appeal is competent.

**In rejoinder**, Counsel for the Respondent while relying on the cases of *Joseph Kaweesa versus Diana Mugisha Civil Appeal No. 0028 of 2013* and *Sage Jeremy Wellington versus Balimunsi Sage Catherine Smith & Another Civil Appeal No.*

25 *0031 of 2023* submitted that Section 77 of the CPA which Counsel for the Applicants premised on refers to 2nd appeals of which Miscellaneous Application Appeal No. 0001 of 2021 is not; that the said Appeal is a 1st appeal against the Ruling and Orders of the Learned Judge for which leave to appeal should have been sought. That Counsel's submissions that an Application can be filed to validate the Appeal is untenable because an incompetent appeal cannot be validated and prayed that the application for stay of execution be dismissed with costs.

## **Court's Decision**


Section 76 of the Civil Procedure Act, Cap. 282 provides for Orders from which appeal lies. It states that:

- *(1) An appeal shall lie from the following orders, and except as otherwise expressly provided* 10 *in this Act or by any law for the time being in force from no other orders—* - *(a) an order superseding an arbitration where the award has not been completed within the period allowed by the court;* - *(b) an order on an award stated in the form of a special case;* - *(c) an order modifying or correcting an award;* - 15 *(d) an order staying or refusing to stay a suit where there is an agreement to refer to arbitration;* - *(e) an order filing or refusing to file an award in an arbitration without the intervention of the court;* - *(f) an order under section 65;* - 20 *(g) an order under this Act imposing a fine or directing the arrest or detention in prison of any person, except where the arrest or detention is in execution of a decree;* - *(h) any order made under rules from which an appeal is expressly allowed by rules.* - *(2) No appeal shall lie from any order passed in appeal under this section.* - 25 Section 77 of the Civil Procedure Act, Cap. 282 provides for Other orders. It stipulates that: - *(1) Except as otherwise expressly provided, no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdiction; but, where a decree is*

*appealed from, any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal.*

*(2) Notwithstanding subsection (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal from it, he or she shall thereafter be precluded from* 5 *disputing its correctness.*

## Order 44 Rule 2 sub-rule 1 stipulates that an appeal under these Rules shall not lie from any other order **except with leave of the court making the order or of the court to which an appeal would lie if leave were given**. [Emphasis Mine]

Considering the above provision of the law that requires seeking the leave of the Court before appealing the Order of the Court makes it an essential step that cannot be overlooked by a party seeking to lodge their appeal. It is not a mere technicality as Counsel for the Applicants wants this Court to believe. The procedure needs to 15 be followed if true justice is to be dispensed. There is a reason why the procedure of seeking the leave of Court was considered and explicitly or expressly incorporated in the Civil Procedure Rules and there are consequences in law for not following the right procedure as provided for in or by the law.

20 In the case of *Andrew Maviri versus Jomayi Property Consultants CACA No. 0274 of 2014*, the Court of Appeal held *inter alia* that:

*"... taking an essential step is the performance of an act by a party whose duty it is to perform that fundamentally necessary action demanded by the legal process, so that subject to permission by the Court, if the action is not performed as by law prescribed, then whatever legal*

25 *process has been done before, becomes a nullity, as against the party who has the duty to perform that act."*

Therefore, the omission of the Applicants and/or their Counsel to seek the leave of Court before appealing the Order of this Honourable Court in Miscellaneous Application Appeal No. 0001 of 2021, which was an essential step to be performed as prescribed by law, renders the Applicant's Appeal in the Court of Appeal a nullity.

In light of the above, Counsel for the Respondent's Preliminary Objection is sustained. The Applicant's appeal in the Court of Appeal is procedurally defective as no leave was sought from this Honourable Court before lodging the same in the

Court of Appeal.


I wish to add that the decision made by this Honourable Court in Miscellaneous Application Appeal No. 0001 of 2021 as earlier stated in the facts above arose from Miscellaneous Application No. 0178 of 2021 wherein the Learned Deputy Registrar granted the Application for a temporary injunction and awarded the Applicants costs.

15 Being dissatisfied, the Respondent appealed the decision of the Learned Deputy Registrar vide Miscellaneous Application Appeal No. 0001 of 2021 making it a 1st appeal. As such, Section 72 for which Counsel for the Applicant cited in his submissions in reply to the Preliminary Objection is not applicable as it relates to second appeals from appeals from appellate Decrees.

In particular, Section 72 (1) of the Civil Procedure Act, Cap. 282 stipulates that:

- *(1) Except where otherwise expressly provided in this Act or by any other law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on any of the following grounds, namely that—* - 25 *(a) the decision is contrary to law or to some usage having the force of law;* - *(b) the decision has failed to determine some material issue of law or usage having the force of law;*

- *(c) a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, has occurred which may possibly have produced error or defect in the decision of the case upon the merits.* - (2)*An appeal may lie under this section from an appellate decree passed ex parte."* 5 **[Emphasis Mine]**

From the reading of the above provisions, I would also like to clarify that the decision in Miscellaneous Application Appeal No. 0001 of 2021 is not a Judgment from which a Decree can be extracted making the right of appeal automatic without 10 the need to seek the leave of Court as Counsel for the Applicant wants this Court to believe. The decision in Miscellaneous Application No. 0001 of 2021 is a Ruling.

Counsel for the Applicant argues that the decision in Miscellaneous Application Appeal No. 0001 of 2021 disposed of the main suit and the interlocutory matters 15 therein. However, the reasons for the dismissal of Civil Suit No. 0073 of 2021 in Miscellaneous Application Appeal No. 0001 of 2021were that the Applicants lacked locus to institute the main suit (Civil Suit No. 0073 of 2021) against the Respondent (who was also the Defendant in that said Civil Suit). There was no Judgment from which a Decree could be extracted to provide an automatic right of Appeal without

20 seeking the leave of the Court.


Counsel for the Applicants also argued that an Application can be filed to validate the appeal pending before the Court of Appeal other than denying the Applicants an opportunity to pursue their appeal right. However, I am left wondering what would 25 be the propriety of that Application. It would be very wrong of this Court to permit the Applicants to purport to file an Application for leave to Appeal when an Appeal was lodged 2 years ago in the Court of Appeal.

Conclusively, this Preliminary Objection succeeds and would ordinarily dispose of this Application.

- 5 However, this Court made a decision vide Miscellaneous Application **No. 0552 of 2024 (***Kiggundu Samuel & 7 Others versus Kiyaga Geoffrey***)** dated 26th September 2024 in which leave was granted to the Applicants to file a Taxation Reference out of time for reasons that whereas the Court only awarded costs in Miscellaneous Application Appeal No. 0001of 2021, the Bill of Costs which were taxed included - 10 Civil Suit No. 0073 of 2021 and the Miscellaneous Application arising therefrom. For only that reason, therefore, this Application succeeds and is accordingly allowed on the following Orders: - (a) The execution of the Orders arising from Miscellaneous Application Appeal No. 0001of 2021 is hereby stayed pending the disposal of the Taxation 15 Reference for which leave was granted arising from Miscellaneous Application No. 0552 of 2024 (*Kiggundu Samuel &7 Others versus Kiyaga Geoffrey*) **NOT** Civil Appeal No. 0330 of 2022; and - (b) Each party shall bear its own costs of this Application. - **Dated at Kampala this 27th** 20 **day of September 2024.**


Alice Komuhangi Khaukha **JUDGE**

25 27/09/2024