Olweny v Obore (Civil Application 554 of 2024) [2025] UGCA 45 (13 February 2025)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAT OF UGANDA AT KAMPALA

# ctvrL APPLICATToN NO. 0554 0F 2024

## (ARTSTNG FROM Ctvrr APpEAL NO. 1119 OF 2023)

### CP OLWENY AMOS APPLICANT

### VERSUS

### OBORE ALFRED RESPONDENT

# RULING BY MOSES KAZIBWE KAWUMI (sittine as a sinele Judeel

This application was brought under Section 33 of the Judicature Act and Rule 6 (2l,of the Judicature (Court of Appeal Rules) Directions S.l. 13-10.

The Applicant sought an order to stay execution of the Ruling and orders in Civil Suit No.18 of 2O2O and taxation proceedings in Application No. 003 of 2024 pending the hearing and final determination of Civil Appeal No.1119 of 2023 pending hearing in this court. He also sought for costs of this application.

I dismissed the application during the hearing of the application for the reasons expounded in this ruling and promised to deliver a detailed ruling.

### Background

The Applicant instituted Civil Suit No. 18 of 2020 against the Respondent in the Chief Magistrate's court at Tororo. The suit was declared to have abated on account of his failure to take out 35 summons within the mandatory statutory period.

The applicant, lodged Civil Appeal No. 08 of 2022 in the High Court at Tororo seeking to have the decision set aside. The appeal was however dismissed with costs for want of merit.

- 10 The Respondent filed a bill of costs in respect to Civil Suit No. 18 of 2020 and upon taxation, it was allowed at UGX .7,654,000/=. The Applicant successfully instituted Miscellaneous Application No. 70 of 2023 seeking a stay of execution which application was granted. The Respondent also filed Taxation Application No.003 of 2024 in respect - 15 of Civil Appeal No. 08 of 2022. The bill of costs was taxed and allowed at UGX.8 ,O57,SOOf =.

20 The applicant filed Civil Appeal No.1119 of 2023 and the instant application in this court seeking to stay execution of the Ruling and orders of the Chief Magistrate's Court in civil suit No.18 of 2020 and to stay taxation proceedings in taxation application No.003 of 2024 pending the hearing and final determination of the appeal. The Application is supported by an affidavit sworn by the applicant.

25 The respondent swore an affidavit in opposing the application. In the affidavit in reply, he deposed among others that the Chief Magistrate's Court already dwelt with and granted the orders sought in the instant application. The respondent raised a preliminary objection to the effect in his submissions.

The Applicant filed an affidavit in rejoinder which does not in any way controvert the fact that there is already an order staying execution issued by the Principal Magistrate Grade one at Tororo.

### Representation 35

At the hearing, Ms. Ssewava Beatrice appeared for the Applicant while Mr. Enock Kayondo appeared for the Respondents. The

5 Respondent was also in Court. Both counsel filed written submissions, which were adopted. !t is worth noting that there art- no submissions in rejoinder to the Respondents issues raised in the submissions in reply.

### 10 The preliminary objection

It was contended by the Respondent that execution of the Orders in Civi! suit No. 18 of 2020 filed in the Chief Magistrates' Court at Tororo was already stayed by His Worship lradukunda Elijah, the Principa! Magistrate Grade One on 28th February 2024. Counsel referred Cr urt to annexure" D" to the applicant's affidavit in support of the application. Counsel invited Court to find the application frivolcus in as far as it seeks to obtain a second order in respect to the same suit.

# Consideration by the Court

20 !t is has long been held in Mukisa Biscuits Manufacturing Co. LTD V. West End Distributors Ltd [19961 1 E. A. 596 thaq-

> "A preliminory objection is in the noture of what used to be called a demurer. lt raises a pure point of law, which is orgued on the assumption that all the facts pleaded by the other side ore correct. lt con not be raised if any fact hos to be oscertained or whot is sought is the exercise of judicial discretion"

!t is clear that what was raised bv the Respondent's Counsel is a 30 matter that does not require evidence to be led as the objection speaks for itself.

!t is not disputed that the Applicant obtained an order from che Magistrate at Tororo staying execution of the orders in Civil Suit No. 18 of 2020.lt is also not contested that the taxation application which 3s the applicant seeks to stay was already disposed of by the court.

For emphasis, ! reproduce part of the order of the tria! magistrate here below:-

3of4

5 "Consequently, this opplication is ollowed with the following orders:

1,. Execution of o decree in Civil Suit No. L8 of 2020 is hereby stayed pending the determinotion of Civil appeol No. 1-L19 of 2023 in the Court of Appeal.

- 2 - 3. Costs of this opplication sholl be in the couse."

With all due respect to learned counsel for the Applicant, I find no substance in the application since the order sought from this court was earlier issued by the Court at Tororo and is still in force. Unless set aside, Court orders from whichever court should be respected. 15

I further find that the application for this Court to stay the taxation proceedings in application No.003 of 2024 pending the determination of the appeal was overtaken by events and there is nothing to stay. The application for taxation was disposed of when the bill of costs was taxed. Proceedings which have been conducted and concluded cannot be reversed. An application for stay of execution has to be preventive rather than corrective. 20

ln the circumstances, granting the sought orders would be superfluous. Accordingly, the objection succeeds. !t was because of the stated reasons that I dismissed Civi! Application No. 00554 of 2024 with costs to the Respondent.

Dated and delivered at Kampala this ay of FA 2025.

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35 Justice of Appea!