Kirumira v Maulana (Civil Revision 6 of 2023) [2024] UGCommC 170 (6 June 2024)

#### 5 **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **COMMERCIAL DIVISION**

#### **CIVIL REVISION NO. 0006 OF 2023**

## **(ARISING FROM THE CHIEF MAGISTRATES COURT OF KAMPALA AT MENGO**

### 10 **SMALL CLAIMS NO. 0275 OF 2023)**

**BRENDA KIRUMIRA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

#### **RAJAB KARIM MAULANA ::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **Before Hon. Lady Harriet Grace Magala**

#### 15 **Ruling**

#### **Background**

This is an application seeking for orders to revise and set aside the judgement and orders in the Chief Magistrate's Court of Kampala at Mengo in *Small Claims No.*

#### *275 of 2023: Rajab Karim Maulana versus Brenda Kirumira and KPI Guards.* The

20 Application further seeks for orders that the Small Claim No. 275 of 2023 be dismissed with costs; and costs of this application.

The grounds of the application are that:

- a) The Small Claims Rules and Procedures did not apply to the claim in the small claims court; - 25 b) The trial magistrate exercised jurisdiction that was not vested in her;

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- 5 c) The magistrate erred when she ordered the Applicant to pay the expenses of the Respondent in respect of the small claims; - d) The entity KPI Askaris in neither a natural or legal person yet the trial magistrate entertained a suit and issued orders against the non-existent person; and - 10 e) The Applicant has never had any business dealings with the Respondent. The affidavit in support of the application was deposed by the Applicant.

#### **Representation and Hearing**

The Applicant was represented by Counsel Sebbowa Francis Kabali of M/s Sebbowa & Co. Advocates. The Respondent represented himself.

- When this matter was called for hearing on the 21 15 st March 2024, all parties were in court but we could not proceed with the hearing of the matter. The Respondent had not filed his reply to the application because he informed court that he did not have a lawyer to represent him. In the presence of both parties, the matter was adjourned for hearing to the 13th May 2024 at 9:30am to allow - 20 the Respondent enough time to hire the services of a lawyer and also file a response to the Application. On the said day (13th May 2024); the Respondent was neither present in court nor had he filed his affidavit in reply. Learned counsel for the Applicant moved court under Order 9 rules 10 & 20 of the Civil Procedure Rules as amended to proceed ex parte. Learned counsel cited and - 25 relied on the case of **Serefaco Consultants Limited – vs - Euro Consult BV & Anor., Court of Appeal Civil Appeal No. 16 of 2007 at page 10** where it was found that where an applicant supports his application with affidavit evidence and the Respondent does not reply the affidavit or otherwise supporting evidence of the

5 Applicant, the same is deemed credible and the facts stand unchallenged. This court granted the prayer of the Applicant to proceed *ex- parte.*

The learned counsel for the Applicant made oral submissions. I have taken into consideration the pleadings and submissions of the Applicant to determine this matter.

#### 10 **Issues**

- 1. Whether the trial magistrate had the jurisdiction to entertain the small claim - 2. Whether the learned trial magistrate exercised her jurisdiction illegally and irregularly when she ordered the Applicant to meet the expenses of the Respondent - 15 3. What remedies are available to the parties?

#### **Determination**

#### **The law applicable on revision**

The power of the high court to entertain such application is provided for under **section 83 of the Civil Procedure Act Cap 71 Laws of Uganda.** It states that:

20 *"The High Court may call for the record of any case which has been determined under this Act by any magistrate's court, and if that court appears to have –*

- *(a) Exercised a jurisdiction not vested in it in law;* - *(b) Failed to exercise a jurisdiction so vested; or* - 25 *(c) Acted in the exercise of its jurisdiction illegally or with material irregularity or injustice,*

5 *The High Court may revise the case and make such order in it as it thinks fit; but no such power of revision shall be exercised –*

*(d) Unless the parties shall first be given an opportunity to be heard; or*

*(e) Where, from lapse of time or other cause, the exercise of that power would involve serious hardship to the person".*

10 **Issue 1: Whether the trial magistrate had the jurisdiction to entertain the small claim**

The Claim against the Applicant and K. P. I Askaris in the lower court was that there was an alleged contract for service between the Applicant, KPI Askaris and the Respondent which was breached when the Respondents failed to pay for the

15 services rendered. It is not disputed that the Respondent was in the business of buying, cooking and serving food to members of the public.

**Rule 5 (2)(g) of The Judicature (Small Claims Procedure) Rules, 2011** states that:

"*These Rules shall not apply to- contracts of service and contracts for service".*

**The Black's Law Dictionary 11th** 20 **Edition at page 404** defines a contract for services as a contract for a job undertaken by an independent contractor, as opposed to an employee. The same dictionary at page 920 defines **an independent contractor as:**

**"***someone who is entrusted to undertake a specific project but who is left free to do the assigned work and to choose the method for accomplishing it.* 25 *It does not matter whether the work is done for pay or gratuitously. Unlike an employee, an independent contractor who commits a wrong while*

5 *carrying out the work usually does not create liability for the one who did the hiring".*

It was the Respondent's claim that he was hired by the Applicant and KPI Askaris to offer catering services to the staff of the latter entity. This was a claim arising from a contract for services. I therefore find that the learned trial magistrate did not have

10 the jurisdiction to entertain a claim arising out of a contract for services.

# **Issue 2: Whether the learned trial magistrate exercised her jurisdiction illegally and irregularly when she ordered the Applicant to meet the expenses of the Respondent**

It was the evidence of the Applicant that she used to work as a property manager 15 of the premises known as Ham Shopping Grounds Block S. That the owner of the premises contracted a private security company known as Kampala Parking Industry Security Services Limited to guard and or secure the premises. That it was the responsibility of the Security Company to feed its employees. That the Applicant never executed any contract between her and the Respondent

20 therefore it was irregular for the learned trial magistrate to issue orders against the Applicant. The Orders of the Trial Magistrate were to the effect that the Applicant and K. P. I Askaris pay a total sum of Ugx. 7,185,000/= (as the decretal sum, court filing fees and costs/ expenses awarded) to the Respondent.

# **Rule 29 of The Judicature (Small Claims Procedure) Rules, 2011** states that a 25 party to a claim under these Rules shall bear his or her own expenses.

I therefore find that it was irregular of the learned trial magistrate to order the Applicant to pay the Respondent Ugx. 85,000/= as court filing fees and Ugx. 100,000/= as costs/ expenses.

#### 5 **Issue 3: What remedies are available to the parties?**

It was the evidence of the Applicant that as a manager of the business premises, she was never privy to any contract for the supply of food to the private security company hired by her employer to secure or guard that the premises. That neither her nor the owner of the business premises were aware of such a contract. I have

10 observed that the documents presented in the lower court as proof of services rendered by the Respondent to *"M/s K. P. I Askaris"* are receipts belonging to an entity whose trade name is "**New Orange Restaurant"** that is located at Mubende. It is not explained anywhere how the Respondent relates with this Restaurant and why the claim was not filed by the New Orange Restaurant. I have also observed 15 that one of the cell phone numbers on the receipts of the Restaurant is "**0759432936"** was the same number used by the Respondent as his telephone number on the Claim Form filed in the Magistrate's Court. In the case of **Abdulrahman Elamin vs Dhabi Group & 2 Others Court of Appeal Civil Appeal No. 0215 of 2013,** the Court one who is not party to the contract, save for certain 20 exceptions cannot sue or be sued for breach of contract. I find that the was no contract between the Applicant and the Respondent. The judgment and orders of the Magistrate's Court against the Applicant are hereby set aside.

#### Costs

Costs according to section 27(1) of the Civil Procedure Act shall always follow the 25 even unless court determines otherwise. Having found all issues in favour of the Applicant, the costs of this Application are awarded to the Applicant.

The Application is allowed in the following terms:

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- 5 a) That the Learned Trial Magistrate did not have the jurisdiction to entertain the Respondent's Claim; - b) That the Learned Trial Magistrate acted irregularly when she found that the Applicant should pay the Respondent's expenses; - c) That the Judgment and Orders of the Learned Trial Magistrate against the - 10 Applicant are hereby set aside; and - d) That the Applicant is awarded costs of the Application.

I so find.

#### **Signed and dated at Kampala this 5th day of June 2024.**

#### 15 **Harriet Grace MAGALA**

**Judge**

**Delivered online (ECCMIS) this 6 th day of June 2024.**