Muwanguzi v Kikayi (Miscellaneous Civil Application 78 of 2023) [2024] UGHC 983 (11 July 2024)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT TORORO MISCELLANEOUS APPLICATION NO.078 OF 2023 ARISING FROM MISCELLANEOUS APPLICATION NO.182 OF 2019 ALSO ARISING FROM CIVIL SUIT NO. 033 OF 2019**

**JANE MUWANGUZI:::::::::::::::::::::::::::::::::::::::::::::APPLICANT VERSUS**

## **ASUMAN KIKAYI:::::::::::::::::::::::::::::::::::::::::::::RESPONDENT RULING**

## **BEFORE: HON. DR. JUSTICE HENRY 1. KAWESA**

This application was brought by way of a notice of motion under **Section 98 of the Civil Procedure Act; Section 33 of the Judicature Act**; and **Order 52 R. I & 3 of the Civil Procedure Rules**.

It seeks the following orders:

- 1. That a declaration that the Respondent is in contempt of a Court order. - 2. An order committing the Respondent to civil prison for disobedience of lawful orders and contempt of Court . - 3. An order directing the Respondent to pay a fine for contempt of a Court order. - 4. The costs of this application be provided for.

The application is supported by the affidavit deposed to by the Applicant; and it is unopposed, though the Respondent was served.

On the 11th of April, 2024, when the application came up for hearing, the Court made an order for it to proceed ex parte. Therefore, the application proceeded exparte.

The Applicant is represented by Counsel Byamugisha Deus of M/S Stoneridge Advocates. The said Counsel filed written submissions which the Court considered and now determines the application as here below:

The issue for determination is:

Whether the Respondent is liable for contempt of Court ?

Counsel for the Applicant cited Erasmus Masiko vs John Imaniraguha & Others HCMA No.1481 of 2016 where it was held that to prove contempt, four elements must be proved, that is;

- 1. The existence of a lawful order. - 2. Knowledge of the order. - 3. The contemnor's ability to comply. - 4. The potential contemnor's failure to comply.

In this case, the record bears a temporary injunction order under Misc. Appln. No.182 of 2019 at the High Court of Uganda at Mbale, which was made in the presence of the parties hereto. The order, among others, restrained the Respondent from dealing, interfering with property comprised in FRV 111, Folio 19, Plot 5 Arubaine Way, Arubaine "A" North East, Busia Municipal Council until the disposal of the main suit," This sufficiently proves the existence of the first and second elements.

With regard to the third and fourth elements, the Applicant averred that after the issuance of the said order, the Respondent went ahead and rented out the suit premises to new tenants; that she tried to cause the said tenants to vacate but the Respondent resisted; and also that the Respondent entered into the premises, broke locks thereon, removed iron sheets and caused further damage to the suit property. The Applicant ably attached photographs supporting her averments, which the Court has seen.

It suffices that the Applicant's averments involve a matter of fact. It is a settled principle of law that where certain facts are sworn in an affidavit, the burden to deny them is on the other party and if he or she does not, they are presumed to have been accepted (**Samwiri Massa Vs. Rose Achen [19781 HCB 297**).

In this case, the Court finds that the Respondent accepted the averments in the Applicant's affidavit, having failed to oppose the application. To that extent, it deems the third and fourth elements as proved as well.

In conclusion, this Court finds that the issue is answered in the affirmative. Consequently, the following orders are hereby granted.

- 1. A declaration that the Respondent committed contempt of a Court order. - 2. A suspended sentence of six months' detention in Civil Prison for any further contempt of a Court order under Appln. No.182 of 2019 at the High Court of Uganda at Mbale. - 3. An order directing the Respondent to pay (one Million Shillings Only) as a fine for contempt of a Court order, and exhibit receipt of the same in this Court within 60 days hereof. - 4. An order granting the Applicant the costs of this application.