Mugabi & 2 Others v Isabirye & Another (Miscellaneous Application 157 of 2024) [2025] UGHC 56 (22 January 2025)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

### **MISCELLANEOUS APPLICATION NO.0157 OF 2024**

(ARISING FROM MISC. APPL. NO.032 OF 2024)

(Also arising from Miscellaneous Application No.11 of 2024)

(Also arising from Miscellaneous Application No.16 of 2024)

(Also arising from Civil Suit No. 17 of 2022)

**1. MUGABI JOHNSON**

2. YIGA FRED

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| APPLICANTS

**3. NABULIME JANE Administrator**

of the estate of late Bukenya Godfrey

## VERSUS

1. ISABIRYE CEASER T/A CEADAN AUCTIONEERS::::::::::::::::::::::::::::::::::: **2. JIMMY OKELLO**

# BEFORE: HON. JUSTICE KAREMANI JAMSON. K

## **RULING**

## **Introduction**

The three applicants brought this application under section 98 of the Civil Procedure Act, Order 44 Rules 2, 3 and 4 and Order 52 Rules 1 and 3 of the Civil Procedure Rules against the two respondents. The applicants seek for orders that:

- a) The applicant be granted unconditional leave to file an appeal against the ruling in Miscellaneous Application no.16 of 2023. - b) The costs of this application be provided for.

The application is supported by an Affidavit of one Nabulime Jane the 3<sup>rd</sup> applicant while the application is opposed by the affidavit in Reply by Jimmy Okello the Respondent.

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The grounds of the application as contained in the application and the supporting affidavit are summarized as follows:

- 1. That the applicants filed Civil Suit No. 17 of 2022. - 2. That respondents filed Miscellaneous Application No.16 of 2023seeking to be removed from the suit in issue and that the application was allowed and the 1<sup>st</sup> and the $3^{rd}$ respondents were removed from the suit. - 3. That the applicant filed Misc. Appl. no. 11 of 2023 for leave to appeal the order allowing application No.16 of 2023 and application No.32 of 2023 for leave to serve by substituted service. - 4. Both Miscellaneous Applications No.11 of 2023 and No.32 of 2023 were dismissed. - 5. That the learned Chief Magistrate erred in law and fact when she dismissed the application for leave to serve the respondents by way of substituted service.

On the other hand, the respondents filed two affidavits in in reply and averred that there is no justifiable reason for granting leave to file an appeal on the grounds;

- 1. That the applicants' application doesn't raise prima facie grounds of appeal that merit serious consideration of this court. - 2. That the chief magistrate rightly disposed the preliminary point in Civil Suit No.17 of 2022 and properly dismissed application No. 32 of 2023 - That there has not been advanced any grounds upon which this court can exercise its discretion to grant him leave to appeal to the High Court.

#### Representation

The applicant was represented by Ms. Gloria Nakayi of $M/S$ Lawtons Advocates while the respondents were represented by $M/S$ Kian Associated Advocates.

Both counsel filed written submissions for consideration by this court. I will not reproduce them here but I will take them into consideration in this ruling.

#### Issues for determination

- 1. Whether there are sufficient grounds to grant leave to appeal against orders of the Chief Magistrate court. - 2. What are the remedies


### Submissions

Counsel for the applicant referred to Order 44 Rule 2 of Civil Procedure Rules on leave of court and Section 98 of the Civil Procedure Act on the powers of this court to enlarge time within which to appeal.

He stated that in this case the applicant has shown that the a prima facie grounds of appeal that merit consideration.

On the other hand, learned counsel for the respondents submitted that the applicant has not shown the likelihood of success of the appeal.

He prayed that the application be dismissed with costs to the respondents.

## Analysis

According to case of Shah V Attorney General 1971 EA 50 the right to appeal is a creature of statute.

Where there is no right of appeal a party must seek leave of court to do so.

Section 219 (3) of the Magistrates Court Act provides that leave to appeal shall not be granted except after satisfaction of the Chief magistrate or High Court that the decision against which an appeal is intended involves a substantial question of law or is a decision appearing to have caused a substantial miscarriage of justice.

According to the case of Sango Bay Estate Limited v Dresdner Bank 1971 EA 17 Spry J held that leave to appeal from an order in civil proceedings will normally be granted where prim facie it appears that there are grounds of appeal which merit serious judicial consideration.

Also see the case of Matayo Okumu V Fransisko Anudhe & 2 Ors 1979 HCB 229 where it was held that for an application for leave to succeed the applicant has to prove to court that there are substantial questions of law to be decided by the appellate court or that the decision against which he intends to appeal appears to have caused a miscarriage of justice.

The principle is that leave is not simply granted but there must be prima facie substantial questions of law to be addressed on appeal.

In the instant case an application for leave was first made to the Chief Magistrate, was refused and hence this application.

I have looked at the grounds in this application and I in my considered view I find that there are prima facie substantial questions of law raised that require to be addressed on appeal as regards the dismissed suit against the respondents who were the 1<sup>st</sup> and the

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3<sup>rd</sup> defendants in the main suit. The dismissal was based on the ground that the suit disclosed no cause of action against two respondents.

Basing on the above reasons, I grant the applicant leave to appeal to this court. The applicant shall file the appeal within fourteen days from today.

The costs of this application shall abide the outcome of the appeal.

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I so order.

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KAREMANI JAMSON. K **JUDGE** 22/01/2025

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