Misaki v Musiime (Civil Application 147 of 2024) [2024] UGCA 152 (26 June 2024)

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CIVIL APPLICATION NO. 147 OF 2024

### MISAKI KAVIIGI ::::::::::::::::::::::::::::::::::

**VS**

**MUSIIME JAMES ::::::::::::::::::::::::::::::::::::**

#### BEFORE: CHRISTOPHER GASHIRABAKE JA

*(Sitting as a Single Justice)*

#### **RULING OF COURT**

This Application was brought under Rules $2(2)$ , $6(2)$ (b) and 43 of the Judicature (Court of Appeal Rules) Directions seeking for orders that;

- 1. A temporary injunction doth issue preserving the status quo, restraining the Respondent and/or heirs and agents from harassing, selling off, locking out, and/or evicting the Applicants, their family members, heirs and/or their agents from land comprised in Bulemezi Block 981 Plot 17, until the final determination and disposal of Civil Appeal No. 887 of 2023 pending before this court. - 2. The costs of this application be provided for.

The grounds upon which this application is premised are set out in the Notice of Motion and the affidavits deponed by the Applicant,

MISAKI KAVIGI, both in the support of the application and in rejoinder.

I have studied and comprehended the contents thereof which are averments in support of the application. I need not reproduce them here.

The Respondent hled a lengthy aIhdavit in reply deponed by MUSIIME JAMES of Muhwezi Law Chambers Advocates sworn on 1sth May 2024 basicafly opposing the application and the averments in support of the application. I sha-Il not reproduce them here. I have however studied and comprehended the contents thereof.

## Representation

At the hearing of this application, Mr. Abel Bainomugisha appeared for the Applicant while Mr. Eric Muhwezi and Atwine Muhwezi appeared for the Respondents.

Both parties filed their written submissions and with leave of court, adopted them as their legal arguments.

# Applicant's submissions

Counsel submitted that the Applicant occupied the suit land around 1986 and has been staying on the land with his children and grandchildren. That the Applicant bought the land from the late Gershom Rwakishaya whose wife confirmed the same in court. Counsel argued that the Respondent consented to this position at the trial court which resulted into a settlement between the Applicant and the Respondent but the Respondent later turned around and

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challenged the consent. That upon redemption of the suit, the Respondent did not amend the plaint to disclose a cause of action as against the Appellant and as such, the Applicant's appeal raises arguable issues with a probability of success.

Counsel submitted that there is a serious threat of execution of the High Court orders and the Applicant will suffer irreparable damage if execution proceeds against the Applicant, who is in possession of the suit property. Counsel argued that the Applicants will suffer substantial loss if the Respondents proceed to evict them from the family land before the hnal disposal of the appeal before this court.

## Respondents submissions

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In reply, counsel submitted that the application is incompetent for having been filed on 12th March 2024 but served on the Respondents on 13th May 2024, which was out of time. In addition, that the Applicant's failure to annex the Notice of Appeal makes this application incompetent. Counsel submitted further that the Applicant has not proved to this court that his appeal has a likelihood of success.

Counsel submitted that the issue of proprietorship of Plot 77 frorn formally plot 4 was already determined and in that regard, there is no likelihood of success. That the Applicant shail not suffer irreparable loss if the application is not granted since plot 17 no longer exists. In addition, that the Applicant wrongly obtained the land and as such will not suffer irreparable loss. Counsel argued that the balance of convenience favors the Respondent to enjoy the fruits

of his judgment as opposed to the Applicant who has fraudulently occupied the land since 1986 and has not taken steps to fix his appeal for hearing.

# Consideration of the Application

I have carefully considered the affidavits and the submissions of both parties. The jurisdiction of this court to grant a tempora-ry injunction stems from Rule 6 (2) (b) of the Rules of this Court which provides as follows;

6. Suspension of sentence and stag of execution.

(2) Subject to subrule (1) of this rule, the institution of an appeal shall not operate to suspend anA sentence or to stay exeantion, but the court maa-

(a) ...

(b) in ang ciuil proceedings, uhere a notice of appeal has been lodged in accordance with rule 76 of these Rules, order a stag of execution, an injunction, or a staA of proceedings on such terms as the court may think just.

Thus, a temporary injunction is intended to maintain the status quo of things pending the determination by court of some serious cause pending before it. In Robert Kavuma Vs Hotel International Supreme Court Civil Appeal No.8 of 199O, Wambuzi CJ, as he then was, held: -

". It is generallg accepted that for a temporary injunction to issue, the court must be satisfied: -

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- That the Applicant has a pima facie case with a probabilitg of success\_ - ii. That the Applicant might otherutise suffer ireparable damage uthich utould not be adequatelg compensated for in damages. - iir. If the court is in doubt, on the aboue two points, then the court utill decide the application on a balance of conuenience. In other tuords, whetler the inconueniences which are likelg to issue from uithholding the injunction tuould be greater than those uLhich are likelg to aise from granting it".

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Thus, the granting of a temporar;r injunction is an exercise of judicial discretion and the purpose of granting it is to preserve the matters in the status quo until the question to be investigated in the main suit is finally disposed of. The conditions for the grant of a temporar5r injunction are;

- 1. Firstly, that, the applicant must show a prima facie case with a probability of success. - 2. Secondly, such injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. - 3. Thirdly if the Court is in doubt, it would decide an application on the balance of convenience.

An order for a Temporary Injunction is granted so as to prevent the ends of justice from being defeated.

# Prima facie case with likelihood of success

The Supreme Court in the case of Gashumba Maniraguha vs Sam Nkudiye Civil Application No. 24 of 2015, in effect held that the likelihood of success, is the most important consideration in an application for stay of execution. Therefore, it is incumbent upon the Applicant to avail evidence, or materia-l to the court in order for it to establish whether or not the Applicant has a prima facie case on appeal.

I have carefully read the submissions by counsel for the Applicant and the Respondent, the afhdavits on record and the law applicable. On the issue of likelihood of success, the applicant stated in paragraph 5 of the a-fhdavit in support that the pending appeal has a likelihood of success. Counsel stated in paragraph 3 of the a-ffidavit in rejoinder that an appeal has been filed and a Memorandum of Appeal was annexed thereto marked annexure 'A2'.

According to the Applicant's Memorandum of Appeal, the Applicant faults the learned trial Judge for failing to find ttrat the amended plaint did not disclose a cause of action against the Applicants yet a party is bound by its pleadings. Further, that the learned trial Judge failed to find that the Respondent's claims had been adequately compensated for by the Applicants.

The Court of Appeal of Kenya described an arguable appeal in Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2O131 e KLR in the following terms:

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"uii). An arguable appeal is not one which must necessailg succeed, but one which ought to be argued fullg before the court; one uhich is not friuolous. uiii). In considering an application brought under R.tle 5 (2) (b) the court must not make definitiue or final findings of either fact or law at that stage as doing so mag embarrass the ultimate heaing of the main appeal."

The decision in Stanley Kang'ethe KinyanJui v Tony Ketter & 5 Others (supra) is of persuasive value and I would adopt it. It is not the duty of this court to pre-empt considerations of matters for the full bench in determining the appeal, but to determine whether the appeal is frivolous. In the instant case, the applicant not only attached the Memorandum of Appeal but also laid out the questions for this court to determine in the appeal.

It is therefore my considered view that the applicant has established that he has a prima facie case pending determination before this court.

## Irreparable damage

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The second consideration is whether the applicant will suffer lrrepattble damage or that the appeal utlll be rendered nugatory lf a stag ls not gronted.

In this regard, the Applicant stated in paragraphs 14, 15 and 16 of the applicant's affidavit in rejoinder that he has been in possession of the suit land since 1987 up to date and was entered on the title in

2OO2. He stated that he will suffer irreparable injury if this order is not granted, having stayed and raised his children on the suit land.

The Respondent does not dispute this fact in the aflidavit in reply. The Respondent simply stated that Plot 17 Block 981 Bulemezi was subdivided and is no longer in existence, but does not dispute that the Applicant is still in possession of the suit land.

In Giella v. Cassman Brown & Co. [973] E. A 358, it was held that by irreparable injury it does not mean that there must not be physical possibility of repairing the injury, but it means that the injury or damage must be substantial or material one that is; one that cannot be adequately atoned for in damages. In the instant case, the Applicant has proved to this court that he will suffer irreparable injury if the order is not granted considering that he is in possession of the suit land.

It is therefore my considered view that the Applicant will suffer irreparable damage if this application is not granted.

## Balance of Convenience

Balance of convenience lies more on the one who will suffer more if the respondent is not restrained in the activities complained of in the suit. Therefore, in arriving at the proper decision whether the balance of convenience favours the Applicant or not, court must weigh the loss or risk at exposure for the applicant in the event the order is denied and the damage which could be suffered if it is not granted. See Jayndrakumar Devechand Devani Vs. Haridas Vallabhdas

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# Bhadresa & Anor, Civil Appeal No. 21 of 1971 (Court of Appeal of East Africa)

In this case the applicant is in possession of the suit property, which he has occupied with his family since 1987. I believe the balance of convenience favours the applicant who is in possession and stands to be prejudiced if he is evicted.

It is therefore my considered view that the applicant in this case has made out a case for the issuance of a temporary injunction and I hereby grant the same with the following orders;

- 1. A temporary injunction is hereby issued preserving the status quo, restraining the Respondent and/or heirs and agents from harassing, selling off, locking out, andlor evicting the Applicants, their family members, heirs and/or their agents from land comprised in Bulemezi Block 981 Plot 17, until the final determination and disposal of Civil Appeal No. 887 of 2023 pending before this court. - 2. The costs of this application shall abide the outcome of the Civil Appeal.

I so order.

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Dated this )G day of 7 L.^--1,\-2- 2024 (-L"

Signed

c topher Gashirabake JUSTICE OF APPEAL

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