Kimera v Nalwadda Kamanyi and Another (Miscellaneous Application 9 of 2022) [2024] UGHCCD 111 (10 July 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS APPLICATION NO. 009 OF 2022 (ARISING OUT OF CIVIL APPEAL NO. 52 OF 2012) (ARISING FROM MENGO CHIEF MAGISTRATES COURT CIVIL SUIT NO. 1155 OF 2008)**

**PATRICK KIMERA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS**

## **1. SUSAN NALWADDA KAMANYI**

## **2. END TIME GOSPEL CHURCHES :::::::::::::::::::::::::::::::::: RESPONDENTS**

### **BEFORE: HON. JUSTICE BONIFACE WAMALA**

#### **RULING**

#### **Introduction**

[1] This application was brought by Chamber Summons under Order 22 rules 23(1)(a) and 89(1) of the CPR seeking orders that;

- a) An order of stay of execution of the decree and judgment delivered at Mengo on the 5th day of September 2012 in Civil Suit No. 1155 of 2008 doth issue pending the hearing and determination of Civil Appeal No. 52 of 2012. - b) The Costs of the application be provided for.

[2] The grounds of the application are set out in the Chamber Summons and in an affidavit in support of the application deposed by the **Patrick Kimera**, the Applicant. Briefly, the grounds are that the Applicant being dissatisfied with the judgment in Civil Suit No. 1155 of 2008 delivered on 5th September 2012 appealed to the High Court vide Civil Appeal No. 052 of 2012. The Applicant avers that the appeal has a high likelihood of success. He states that he has taken reasonable steps in pursuing the appeal and the appeal will be rendered nugatory if the application is not granted. He further states that he will suffer irreparable loss if the stay of execution is not granted as he will be arrested or committed to civil prison, he will be evicted which will subject him to more costs and will weaken his financial position. The Applicant concluded that on the balance of convenience, he will suffer much more than the Respondents and that it is in the interest of justice that the application is allowed.

[3] The Respondents opposed the application through an affidavit in reply deposed by **Susan Nalwadda Kamanyi**, the 1st Respondent. She stated that judgment in Civil Suit No. 1155 of 2008 was entered in their favour, whereby the Applicant was declared a trespasser on the land, permanently injuncted from further trespassing and an eviction order issued against him, among others. The deponent stated that the Applicant filed Miscellaneous Application No. 809 of 2012 in the Chief Magistrates Court seeking an order of stay of execution pending appeal; which was heard and disposed of by the Chief Magistrate who granted the application with orders that the applicant deposits a sum of UGX 30,000,000/= as security for due performance of the decree. The deponent stated that instead of pursuing the appeal, the Applicant made a series of complaints against the then Chief Magistrate wherein the file kept moving from the Chief Magistrates Court and the Inspectorate of Courts.

2 [4] The deponent further stated that having failed to deposit the security for due performance of the decree, the Respondents made an application for execution. A warrant of to give vacant possession of the land was issued on 14th November 2016 upon failure by the judgment debtor to show cause why execution should not issue. On 13th December 2016, the Applicant was forcefully evicted and the property was handed over to the Respondents. Following the said eviction, the Applicant with the help of the Deputy Resident City Commissioner D/RCC), Rubaga and some police officers, arrested the guards left on the premises and enabled the Applicant to regain access to the property. The Deputy RCC in further disobedience of the court orders invited the deponent and other members of the 2nd Respondent church for a meeting purportedly to resolve the dispute on the land. The Respondents, through their lawyers, informed the Deputy RCC that the matter had already been resolved by the court. In May 2017, the Respondents applied to the High Court Execution Division to be put in possession of the suit land for detention of the judgment debtor for obstruction of possession of the suit land.

[5] The deponent further challenged the propriety of the appeal and its likelihood to succeed given the defects in its filing. She also averred that it is an abuse of the court process for the Applicant to file an application for stay of execution when the Chief Magistrates Court already considered and granted an order of stay of execution subject to depositing UGX 30,000,000/= which has not been deposited by the Applicant.

[6] The Applicant made and filed an affidavit in rejoinder whose contents I have also taken into consideration while determining the matter before Court.

## **Representation and Hearing**

[7] At the hearing, the Applicant was represented by **Mr. Charles Ntege** from M/s Lugoloobi Associated Advocates while the Respondents were represented by **Mr. Wacha Moses** from M/s KGN Advocates. It was agreed that the hearing proceeds by way of written submissions. However, only Counsel for the Respondents filed their submissions; which I have taken into consideration in the determination of this matter.

## **Issues for Determination by the Court**

[8] Two issues are up for determination by the Court, namely;

*a) Whether the application for stay of execution is properly before the Court? b) Whether the application raises sufficient grounds for grant of an order for stay of execution?*

## **Resolution of the Issues**

*Issue 1: Whether the application for stay of execution is properly before the Court?*

[9] I will begin by considering the averment by the Respondents in paragraph 21 of the affidavit in reply to the effect that the instant application is an abuse of the court process on account that the Applicant had earlier on filed an application for stay of execution in the Chief Magistrates Court at Mengo; which application was conditionally granted upon deposit by the present Applicant (judgment debtor) of a sum of UGX 30,000,000/= into the court as security for due performance of the decree. According to the evidence before the Court, the Applicant has never complied with the said condition. In paragraph 4 of the affidavit in rejoinder, the Applicant admits having filed the said application for stay of execution but states that the same was dismissed and he denies ever having been ordered to deposit any security into the court.

[10] Perusal of the record reveals that vide M. A No. 809 of 2012, the present Applicant sought orders of stay of execution of the same decree subject of the present application. The application was heard and granted by the trial Chief Magistrate upon the condition referred to above which was supposed to be satisfied within 14 days from the date of the ruling. The ruling of the Chief Magistrate dated 12th December 2020 is on record. I do not know why the Applicant chose to peddle a falsehood before this Court in presence of such a clear record. If the Applicant was dissatisfied with the said order, his option lay in legally challenging it and not ignoring it as if it never existed. Among the many options available to a party before court, wishing away a court order is not one of them.

[11] It follows, therefore, that after considering and allowing the application for stay of execution by the trial court upon such terms as the court deemed fit, it is not open under the law for the Applicant (judgment debtor) to bring another application seeking the same orders before the appellate court; unless the application is for purpose of challenging the orders of the lower court. Upon this ground, the present application is incompetent before the Court.

[12] Secondly, I take issue with the deliberate falsehood peddled by the Applicant, on oath, before this Court. The Applicant in the affidavit in rejoinder categorically stated that the application before the trial court was dismissed yet the court record shows that it was granted, albeit conditionally. This deliberate falsehood goes to the root of the matter since the Applicant comes to this Court with unclean hands, makes the application one that is brought in bad faith and thus amounts to abuse of the process of the court. Abuse of the court process is the use of the process for an improper motive or for purpose it is not intended for. It is clear to me that by this application, the Applicant intended to mislead the court; which is an improper motive and exhibits bad faith.

[13] Lastly, it was also shown by the Respondents in paragraphs 8 and 9 of the affidavit in reply that the learned Registrar issued a warrant to give vacant possession of the suit land whereupon the Applicant was forcefully evicted from the suit property but the Applicant with the help of the Deputy RCC Rubaga Division and some police officers arrested the guards left on the premises and enabled the Applicant to regain access to the property. This averment by the 1st Respondent is supported by evidence as seen in annexures D and E on the affidavit in reply. The Applicant by his averments deny having been evicted from the suit property and indicates that he is still in possession and occupation of the same. The Applicant, however, offers no credible explanation and does not rebut the clear evidence of the process indicating his eviction from the suit property. This Court is left to believe the fact that the Applicant was indeed evicted from the suit property under a lawful court process and he forcefully got his way back. That being the case, such conduct borders on contempt of the orders of court; another indication that the Applicant has not come to court with clean hands.

[14] There was an attempt by the Applicant to claim that execution in the matter had not been completed; as a justification for ignoring the part of execution that had been undertaken. Such would be a wrong approach by a party and would constitute an act of bad faith. It does not matter whether execution is complete or not; any action to resist or reverse any part of execution done under an order of the court is illegal. It follows that any action seeking the assistance of the court in the face of such illegality is in vain since the Court cannot render a helping hand to a party in furtherance of such conduct.

[15] In light of all the above findings, this application is incompetent before the Court on account of being improperly before the Court, being an abuse of the court process and having been brought in bad faith. It is not necessary therefore to delve into the second issue. The application is accordingly dismissed with costs to the Respondents. It is further ordered that given the age of the substantive matter, the appeal should be fixed for hearing within 30 days from the date of this ruling. It is so ordered.

*Dated, signed and delivered by email this 10th day of July, 2024.*

**Boniface Wamala JUDGE**