Miao Hua Xian v Dr. Elly Karuhanga and Others (Civil Suit No. 739 of 2023; Miscellaneous Application No. 2097 of 2023; Miscellaneous Application No. 2709 of 2024) [2025] UGCommC 140 (2 April 2025)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [COMMERCIAL DIVISION]**

## **[ARISING FROM MISCELLANEOUS APPLICATION NO. 2709 OF 2024] [ARISING FROM MISCCELANEOUS APPLICATION NO. 2097 OF 2023]** 10 **[ARISING FROM CIVIL SUIT NO. 739 OF 2023]**

| | MIAO HUA XIAN | ] | APPLICANT | |----|----------------------------------|--------|-------------| | | | VERSUS | | | 15 | | | | | | 1.<br>DR. ELLY KARUHANGA | ] | | | | 2.<br>OSCAR KAMBONA | ] | | | | 3.<br>SAMUEL MAYANJA | ] | | | | 4.<br>PETER CR KABATSI | ] | | | 20 | 5.<br>DR. KALLU C. KALUMIYA | ] | | | | 6.<br>JOSEPH MATSIKO | ] | RESPONDENTS | | | 7.<br>BRUCE MUSINGUZI | ] | | | | 8.<br>JET J TUMWEBAZE | ] | | | | 9.<br>AUGUSTINE OBILIL IDOOT | ] | | | 25 | 10.<br>ELISON KARUHANGA | ] | | | | 11.<br>ZULAIKA M. KASAJJA | ] | | | | T/A KAMPALA ASSOCIATED ADVOCATES | | |

### **Before: Hon. Justice Ocaya Thomas O. R**

#### **RULING**

#### **Introduction**

This is an application brought under the provisions of Order 44 Rules 1, 2, 3 and 4 and Order

35 52 Rule 1 and 2 of the Civil Procedure Rules ["CPR"] and Section 98 of the Civil Procedure Act ["CPA"] and seeks the following orders:


- 5 (a) That leave be granted to the Applicant to appeal to the Court of Appeal of Uganda at Kampala against the Order and Decree in Miscellaneous Application No. 2097 of 2023 and Civil Suit 739 of 2023. - (b) Costs of this application be provided for. - 10 The Respondents herein filed HCCS 739 of 2023 ["The Main Suit"] seeking orders for recovery of monies due as legal fees by specially endorsed plaint. The Applicant filed HCMA 2097 of 2023 ["Head Application"] seeking unconditional leave to appear and defend. This court dismissed the said application and entered judgment for the Respondents herein in the main suit. The Applicant contends that she is aggrieved by the said decision and is desirous 15 of preferring an appeal to the Court of Appeal, hence the present application.

The Applicant avers that the order and decree in this case by court is not one of those cases where one can appeal as of right to the Court of Appeal and thus leave to appeal to the Court of Appeal is required and accordingly, the Applicant prays for leave to appeal.

In response, the Respondents contended that in light of the ruling of court in HCMA 2097 of 2023 and the judgment in default in HCCS 739 of 2023, the Applicant has a right of appeal without seeking leave. In the alternative, the Applicant has not shown that her appeal raises serious grounds of appeal that merit consideration. Additionally, the Respondents contend

25 that the Applicant is out of time within which to file an application for leave to appeal and owing to the above, that the present application be dismissed with costs.

In Rejoinder, the Applicant contended that the Applicant has already commenced and filed a copy of an appeal before this court and to the Court of Appeal under Civil Appeal 1094 of 30 2024 appealing against the decree in HCCS 739 of 2023 and within time. *(sic)* Without prejudice to the above, the order in HCMA 2097 of 2023 in which the Applicant seeks leave to appeal has a right of appeal once this Honourable Court grants leave which shall be shown in her memorandum of appeal as required by law. Additionally, the Applicant contends that she filed this application in time since the time taken to extract the said order is not reckoned

35 in the period within which an application for leave to appeal is to be made.

#### 5 **Representation**

The Applicant was represented by M/s Stabit Advocates while the Respondents were represented by M/s Kampala Associated Advocates.

#### **Evidence and Submissions**

10 The Applicant led evidence by way of an affidavit in support and an affidavit in rejoinder both deponed by a one Mandut Manfred, an advocate working with M/s Stabit Advocates, the Applicant's retained counsel herein. The Respondents led evidence by way of an affidavit in reply deponed by a one Rayner Mugyezi, an advocate working with M/s Kampala Associated Advocates, the Respondents' retained counsel herein.

Both parties made submissions in support of their respective cases which I am thankful for. For purposes of brevity, I have not found the need to reproduce them verbatim herein save to note that the court considered the same in arriving at its decision below.

#### 20 **Decision**

#### **Order 44 Rules 2 and 3** provide thus:

"(2) 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.

25 (3) Applications for leave to appeal shall in the first instance be made to the court making the order sought to be appealed from."

The right of appeal is a creature of statute and must be given expressly by statute. See **Hamam Singh Bhogal T/a Hamam Singh & Co. v. Jadva Karsan (1953) 20 EACA 17, Baku**

30 **Raphael v. Attorney General S. C Civil Appeal No. 1 of 2005 and Luwa Luwa Investments Limited v URA HCCA 43/2022.**

By virtue of **section 76 (1) (h) of The Civil Procedure Act**, **CAP 282** a right of appeal exists from orders made under rules from which an appeal is expressly allowed by rules. **Order 44**

35 **Rule 1** of The Civil Procedure Rules specifies orders from which appeals arise as a matter of right. An order dismissing an application for leave to appear and defend is not listed among

- 5 them. The order sought to be appealed is not one of the listed orders, hence this application. **Rule 2** thereof states that an appeal under the 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. - 10 Apart from determining whether or not, the court to which an application of this nature is made should; (i) identify and assess the "seriousness and significance" of the points sought to be raised on appeal. If the points are neither serious nor significant, relief will not usually be granted; (ii) the court must consider the points relate to a significant misdirection on law or fact; and (iii) the court must always have regard to all the circumstances of the case, 15 including (a) the need for litigation to be conducted efficiently and at proportionate cost; and (b) the need to enforce compliance with rules, practice directions and orders. The relevant - factors would vary from case to case but might include the promptness of an application for relief and other past or current delay. See **Geralldine Busingye Begumisa v EADB & Ors HCMA 1043/2023** - 20

If the question is one of principle and a novel one, ordinarily leave to appeal should be granted. Substantial justice should not altogether be lost sight of in considering finality of decisions, in cases where the Legislature and the Rules Committee have cast the duty of deciding whether the litigation should be continued further, on the trial court or 25 alternatively the appellate Judge who considers an application for leave to appeal. It would be obviously absurd to allow an appeal against a decision under a provision designed to limit the right of appeal. However, if the question raised be one in respect of which there is no authoritative decision that would be a guide to the parties, then the circumstances favour granting of leave. See **Smile Communications Limited v ATC HCMA 2314/2023**

Leave will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration see **Sango Bay Estates Limited and others v. Dresdner Bank [1992] E. A. 17; G. M. Combined (U) Ltd v. A. K. Detergents (U) Ltd, S. C. Civil Appeal No. 23 of 1994; and Kayaga v. Waligo C. A. Misc. App. 80 of 2012, Southern**

35 **Insurance Brokers & Ors v Niko Insurance HCMA 568/2022**

- 5 An Applicant seeking leave to appeal must show either that his or her intended appeal has a reasonable chance of success or that he or she has arguable grounds of appeal and has not been guilty of dilatory conduct. Leave to appeal will be given where: the court considers that the appeal would have prospect of success; or there is some compelling reason why the appeal should be heard, but where the order from which it is sought to appeal was made in - 10 exercise of a judicial discretion, a rather strong case will have to be made out See **GM Combined v, AK Detergents SCCA No. 23 of 1994**

The court will only refuse leave if satisfied that the Applicant has no realistic prospects of succeeding on appeal. A real prospect of success means that the prospect for the success 15 must be realistic rather that fanciful See **Swain v. Hillman [2001] 1 All ER 91**

In applications where the court has to assess the merit of the grounds of appeal, an Applicant ought to attach a draft memorandum of appeal. See **Hosea Ssonko & Ors v Dick Banoba HCMA 122/2018, Junaco (U) Ltd v DFCU Bank HCMA 27/2023**

#### Is The Appeal sought to be preferred one that requires leave?

I am cognizant that there has been some contestation around whether the dismissal of an application for leave to appear and defend requires leave to prefer an appeal against such a decision. One line of precedent posits that leave is necessary. See **Kibalama Mugwanya v**

## 25 **Butebi Investments Enterprises Ltd CACA 190/2013, Andrew Kibirige v Haruna Kato HCMA 920/2013**

In my considered view, a dismissal of an application for leave to appear and defend under Order 36 Rule 5 determines the cause brought under specially endorsed plaint. The dismissal

- 30 of the application results into a default decision on the specially endorsed plaint, thereby determining it. It follows that what results is really a decree and not an order, as there is an interlocutory determination of the merits of the defence in the main suit which, once the said application fails, summarily determines the substantive suit. It follows that, in my considered view, leave to appeal would not be necessary. See **Hwang Sung v M&D Timber Merchants** - 35 **SCCA 2/2018, UAP Old Mutual Insurance Uganda Limited v Rwenzori Hdyro (Pvt) Ltd & Anor HCMA 1959/2023**


5 Preference of Appeal

It is common ground that the Applicant has already preferred an appeal arising from the main suit vide *Civil Appeal 1094 of 2024* which is now pending before the Court of Appeal.

#### **Section 10 of** the **Judicature Act, CAP. 16** provides thus:

"An appeal shall lie to the Court of Appeal from decisions of the High Court prescribed 10 by the Constitution, this Act or any other law."

The jurisdiction granted to the Court of Appeal above is both exhaustive and exclusive. This means that, save for where the law allows for other courts to make decisions on matters relating to the appeal (usually small peripheral matters), no other court is entitled to 15 determine any question relating to the appeal. This is because, once a court has no jurisdiction, it does not have the power to take even one step in the proceedings and determining preliminary points of law in respect of the appeal, especially where they have the ability to affect the whole appeal, is a step. See **Ozuu Brothers Enterprises v. Ayikoru Milka HCCS64 of 2011, Hectarage Partnership & Anor v Kesiime Polly HCCA 41/2014.**

Only the Court of Appeal is so empowered to make such decisions, including the power to determine if that appeal is lawfully before it. This is more important because the Court of Appeal may, in exercise of its powers or discretion, nevertheless admit an appeal filed out of time. See **Gashumba Manigaruha v Sam Nkundiye SCCA 24/2015, Hajji Mohammed**

### 25 **Katoto v Justus Kyabahwa HCMA 875/2023**.

Once an appeal is filed, all questions touching the said appeal ought to be brought before and determined by the Court of Appeal rather than any court, especially a subordinate court such as the present court. See **ABSA Bank v Jing Hong & Ors HCCS 35/2009, Aya Investments**

30 **v Industrial Development Corporation Of South Africa HCMA 3063/2023, KK Fresh Produce Exporters Limited & Anor v Turkish Airlines Limited HCMA 2291/2023.**

It must be noted that an appeal against a dismissal of an application for leave to appear and defend (and the consequent judgment in favour of the Respondent in the head suit) is an 35 appeal arising from and against the final orders in the head suit. One cannot appeal the

- 5 application for leave to appear and defend and the consequent judgment separately. It follows therefore that it would be improper for this court to make a decision regarding leave to appeal in respect of an appeal already pending before the Court of Appeal. For that reason, and notwithstanding court's own observations regarding leave to appeal, this court would decline this application. - 10

Accordingly, owing to the fact that the subject suit is already the subject of an appeal before the Court of Appeal, which appeal would encompass any determination on any interlocutory applications arising therefrom, I find that this court is not clothed with jurisdiction to determine the present application and the same is accordingly dismissed with costs.

**Dated** this\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_2025, delivered electronically and uploaded on **ECCMIS** 2nd April


**Judge, 2nd April, 2025.**

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