Mukasa Kawaase v Nalweyiso (Miscellaneous Application 1190 of 2024) [2024] UGHCLD 162 (18 June 2024)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### **LAND DIVISION**

## MISC. APPL. NO. 1190 OF 2024

### (ARISING FROM MISC. APPL. NO. 3232 OF 2023)

### (ALL ARISING OUT OF CIVIL SUIT NO. 419 OF 2016)

ABBAS MUKASA KAWAASE :::::::::::::::::::::::::::::::::::

### **VERSUS**

## SAFINA NALWEYISO MUKASA :::::::::::::::::::::::::::::::::::

#### Before: Lady Justice Alexandra Nkonge Rugadya 10

$\mathsf{S}$

## **RULING:**

The applicant seeks an order staying the execution of the decree and taxation proceedings pending the hearing and determination of the appeal in **Civil Appeal No. 316 of 2024**; and for costs to be provided for.

In the supporting affidavit deponed by the applicant, the grounds are laid out in 15 detail but briefly, that the applicant is dissatisfied with the orders of court which are now pending an appeal; and that there is an impending threat of execution of the said orders by the respondent; and the appeal will be rendered nugatory if the application is denied and the applicant will suffer substantial loss if the application is denied. 20

## Consideration of the issues by court

Counsel for the applicant referred to the case of Attorney General vs. Eddie Kwizera, Constitutional Application No. 1 of 2020, where the Supreme court, citing earlier cases on the matter, enumerated the basic conditions that

Nulaing

must be satisfled by an applicant for grant of an order for stay of execution as follows:

- 1. The lodgment of a notice of appeol and request for certified copies of the record of proceedings to enable him or her file a memorandum of appeal. - 2. That ttrc appeal has a high likelihood of success/ pima facie case has been made out. - 3. That the opplicant shall suffer ineparable loss if the stag of execution is not granted or that the appeal uill be rendered nugatory if the stag is not granted; - 4. If 2 and 3 haue not been established, tle Court considers uhere the balance of conuenience lies; 10 - 5. That the application hc.s been lodged u..tithout undue delag.

## Representation:

The applicant was rcprcsented by M/s M, A Kajubi & Co, Aduocates. The respondent was represented on hcr part by M/s Mutebesa Richard Adaocates

## & Solicitors,

Counsel for the respondents in this application however raised two objections: in the first place that the application manipulated the ECCMIS; and secondly that the application was res judicato.

## 20 Preliminary Obie ction No. 7: Was there manioulation of the ECCMIS:

By way of a brief background, this court entered an exporte judgment against the defendants on 296 March, 2023, which was delivered by email. The applicant then filed IvIA No, 3232 oJ 2023, seeking to set aside th,e exparte judgment and for the case to be heard inter partc.

\'JP 2 ,\*

on 9s April, 2024, tLlis court dismissed the said application, which decision the applicant now seeks to appeal against. The ruling was delivered and uploaded on ECCMIs on 17n APrrl' 2024.

As a practice, a ruling may be signed, read out and uploaded on the same day' On other occasions however, it may be signed on one day and read out on another day; and uploaded onto ECCMIS on yet another day' 5

It is also possible for court to sign the ruling on one day, have it emailed on <sup>a</sup> different date and uploaded onto ECCMIS on a later date, sometimes even after the judicial officer has left office.

Time within which to lodge an appeal starts running on the day on which the ruling is delivered which is the day it is read out to the parties or sent to them electronically. It is important to note that the time does not therefore start counting when the ruling is uploaded on the ECCMIS' 10

That is to say, that in all scenarios above, the date on which the ruling is delivered whether physically or electronically is the date when the 14 days as stipuiated in the Judtca ture court of Appeat Rules, time within which to fiie a notice of appeal would start running. 15

In this instance, the ruiing was to be delivered on 9th Apr1I,2024 but from the record it was delivered by emaii (electronically) on 17ft April, 2024, which was

the same date on which it was uploaded on the ECCMIS. All counsel were duly notified of the ruling on that date. This is the date on which the 14 days started to run. zo

Thenoticeofappealwasfiledonthe22"ddayofApril,2o24whichiswithin the 14 days. The Judicature court of Appeal Rules further stipulate that the

notice of appeal must bc served within seven days' 25

However, in this case counsel for the respondent was served with the said notice on 2"d May, 2024 whicti was out of time.

v6 <sup>3</sup> sJ/

counsel for the applicant ought to have sought the leave of this court to file out of time, which he did not.

In other words, although the appcal was filed within time1, it was not served within the stipulated seven days. It now lies within the jurisdiction of the appellate court to validate the appeal.

counsel's concerns that there was manipulation of the system were not properly grounded. Had he taken the time to check all the documents lodged on ECCMIS under fiIA No. 3232 of 2024, he would have noted that among the <sup>25</sup> documents which were liled was both the notice of appeal and the letter requesting for a record of the proceedings.

The introduction of ECCMIS makes the physical stamping of court documents no longer necessary. As long as the document has been duly uploaded on ECCMIS it is officially filed and received by court'

Electronic filing is currently the modern and formal process and the only mode of iiling adopted by the judiciary, which implies that stamping of documents will be soon be phased out. 15

In the Land Division specifica11y, perhaps unlike other divisions, the physicai stamping of documents is sti1l ongoing, given the time it takes for land matters to be concluded. The nature of the files held and handled by the division is that

a bulk of them are still largely physical and in the process of being introduced under ECCMIS. 20

In light of the above, this objection is accordingly overruled'

# Preliminaru Ob iection No. 2: Was the matter res iudicata?

It was counsei,s furthcr submission that this application is res judicata and contravenes section 7 of the ciull Procedure Act since the applicant herein alreadysoughtanorderforstaytaxationproceedingsinhisomnibuslllAS232 of 2023. 25

\$,y6^

That although the application is coached as an order for stay of taxation proceedings, if granted, its effect was to stay execution of the decree in ,[LC. C. S. No, 479 of 2016 since costs were part of the award in the decree.

Having lost iW. A No. 3232 of 2023, the applicants' remedy was to fi1e an appeal in the Court of Appeal and then apply for stay of execution by way of appeal in the Court of Appeal not in this court because this court had already dismissed MA 3232 of 2023 which sought a similar order.

Counsel therefore invited this court to note the fact that the applicant's submissions under condition "F" of his submissions confirmed that indeed this application was similar to that in MA No. 3232 of 2023 which it already dismissed.

He prayed for the dismissal of the application with costs and the applicant to be advised to seek an order of stay of execution in the right forum if he so wishes.

## Consideration of the issue bu court:

15 The statutory bar of res-judicata is contained Procedure Act (hereinafter rcferred to as the Act) in section 7 of the Civil which provides:

> KNo court shall try ang sult or issue ln uthich the mqtter dlrectlg and substantlallg iz issue has been dlrectlg and substantiallg ln issue tn a Jonner suit betueen the sa nu parties, or betuteen parties under uhom theg or ang of thetn claln, lltigattng und.er the sam,e tltle, in a. court conPetent to try the subsequent sult or the suit ln uhlch the lssue has been subsequentlg ralsed., and hqs been heard and tlno'llg declded bg that Court,"

25 The principles rclating to the doctrine have bcen enunciated in many cases for example in the case of Ganatra as, Ganatra[2oo7] I EA 76 at P 82 where Justice Nyamu hcld:

> ",,,Jor res judicata to be establishcd, three conditions haue to be fulfilled, Firstlg, that there utas a Jormcr suit or proceedings in uhlch the sa fiie

u,Put'

parties as ln the subsequent suit or proceedings t.l,r.rrs lltigated. Second.lg, thaf the natter in lssrre in the ldter suit must haue been dlrectlg and substdntidllg ia tssze in the fonner suit. Thirdlg, that d court competent to try it ho,d lrcard and. ftnallg decided the ,rrdtters in controaersy betueen the parties in the Jornter suit..."

In the application IIIA No, 3232 oJ 2O23 the same applicant sought to set aside t}re exparte judgment and orders in Ciuil Suit .l\Io. 419 of 2076 and also sought to stay the taxation proceedings arising therefrom.

In this present application, the prayers are for stay of execution of the decree in

10 Ciuil Suit No. 479 oJ 2016 (which he never appealed against), pending the determination of the appeal against the orders made by this court in MA No. 3232 of 2023.

Not only is it evident that there was a former suit or proceedings in which the parties are the same as in the subsequent suit or proceedings litigated by this very court; it is also clear that the matters in issue in the dismissed application are directly and substantially in issue in the current application.

These issues havc therefore been heard and determined by this court which was competent to try, hear and dccidc the matters in dispute.

20 I could not agree more with the argument that having lost Jltt. A No. 3232 oJ 2023, the applicants' remedy was to file an appeal in the Court of Appeal and then apply for stay of execution by way of appeal in the same court.

This court is therefore functus officio.

Costs awarded to the respondent.

2s Alexandra Nkonge

Judge

7&h June, 2024

lA'4' lr ),DLf <sup>d</sup>h rptl 0,'bPe C 6