Mafabi v Mash Investments Limited & 2 Others (Miscellaneous Application 236 of 2024) [2024] UGHC 1061 (7 November 2024)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT UGANDA HOLDEN AT MBALE

# MISCELLANEOUS APPLICATION NO.236 OF 2024

## (ARISING FROM LAND SUIT NO. 15 OF 2021)

GREGORY GIDAGUI MAFABI ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. MASH INVESTMENTS LIMITED

## 2. FRANCIS MASHATE WANDUYI

## <table> 3. NAMBULA STEPHEN MUKHWANA :::::::::::::::::::::::::::::::::::

### BEFORE HON. JUSTICE LUBEGA FAROUQ

#### **RULING**

### Introduction

- 2. This application was brought by way of Chamber Summons under section 37 of the Judicature Act Cap 16, Section 98 of the Civil Procedure Act Cap 282, order 43 rules 1-4 and order 52 rules 1-9 of the Civil Procedure Rules SI.71 for orders that- - (a) Execution of judgment and orders issued in Civil Suit No.15 of 2021 be stayed pending determination the Court of Appeal Civil Appeal Gregory Gidagui Mafabi V. Mash Investments & 2 Others; - (b) The status quo of the suit land be maintained and the Respondents be restrained from in any way entering or interfering with the Applicant's user rights or evicting the Applicant from the suit land and property pending the determination of Court of Appeal Civil Appeal, Gregory Gidagui Mafabi V. Mash Investments & 2 Others; - (c) The Respondents are prohibited/restrained from alienating, disposing, selling, transferring, creating any third party rights/interests or in any way dealing with the legal status of the suit land and property pending the determination of Court of Appeal Civil Appeal, Gregory Gidagui Mafabi Vs. Mash Investments & 2 Others: and

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(d) Costs of the application be provided for.

3. This application is supported by the affidavit in support sworn by the Applicant and opposed by the 3<sup>rd</sup> Respondent in his affidavit in reply.

## 4. Legal Representation

- 5. Counsel Nangulu Edmond appeared for the Applicant, while counsel Nappa Geoffrey together with Counsel Eric Kiingi appeared for the 3<sup>rd</sup> Respondent. The $1^{st}$ and $2^{nd}$ Respondents were unrepresented. - 6. At the hearing of this application, before court could grant schedules to the parties to file their respective submissions, counsel for the 3<sup>rd</sup> Respondent intimated to court that they have serious preliminary objections which warrant court's determination before deriving into the merits of this application. - 7. This court found it prudent to determine the preliminary objections of the 3<sup>rd</sup> Respondent first before determination of the merits of the main application. - 8. The parties requested court to proceed by way of written submissions which was granted by this court and all the parties complied.

## 9. Preliminary objections

- (a) That the application is incurably defective arising out of an already *determined suit or matter;* - (b) That the Applicant irregularly acquired an administrative restraint order; - (c) That Miscellaneous Application No. 236 of 2024 is Res judicata; - (d) That Court is functus officio lacking jurisdiction to entertain the instant *Application;* - *(e) That no imminent threat to warrant a stay of execution.* - I have however interrogated the submissions of the parties on the stated 10. preliminary objections and found that they cannot dispose of the main application given its nature. - Secondly, some of the issues raised as preliminary objections, are matters 11. which this court is under a duty to interrogate in the main application. Like; the issue of whether there is a pending suit or not and the issue of whether there is imminent threat of execution. These are matters for determination in the main application.

- In the circumstance, I will determine the said preliminary objections in the 12. main application which I have fixed for hearing on 12<sup>th</sup> November 2024 at 2pm. The administrative order that was issued expiring today the 7<sup>th</sup> November 2014 is here extended to 12<sup>th</sup> November 2024. - You are advised to come ready to proceed with the main application. 13.

**LUBEGA** ROUO Ag. JUDGE

Ruling delivered to the emails of the advocates of the parties this $7<sup>th</sup>$ day of November 2024.

at a staff third part

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