Ssimbwa and Another v Kataabu (Civil Miscellaneous Application No. 819 of 2021) [2021] UGHCLD 142 (20 October 2021)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# (LAND DIVISION)

# **MISCELLANEOUS APPLCATION NO.819 OF 2021**

#### $\mathsf{S}$

# (ARISING OUT OF MISCELLANEOUS CAUSE NO.121 OF 2020)

- 1. RICHARD SSIMBWA - 2. NANZIRI JENNIFER::::::::::::::::::::::::::::::::::::

#### **VERSUS**

KATAABU SIMON::::::::::::::::::::::::::::::::::::

Before: Justice Alexandra Nkonge Rugadya. 10

### RULING.

#### **Introduction:**

This application is brought by notice of motion, under Order 43 rules 4 (2), (3) and (5) of the Civil Procedure Rules S. I 71-1 seeking orders that;

1. The ruling and orders of Her Lordship Lady Justice Alexandra Nkonge Rugadya 15 dated $10^{th}$ March 2021 vacating the applicants' caveats be stayed pending the determination of the appeal.

#### 2. Costs of the application be provided for.

#### 20 Grounds of the application.

The grounds upon which this application is premised are contained in the affidavit in support of Mr. Richard Ssimbwa, the 1st applicant, wherein he states *inter alia* that; on 10th March 2021, this court ruled that the two caveats on land comprised in *Kyadondo Block* 249 plots 117 & 118 and Kyadondo Block 250 Plot 201 at Bunga (hereinafter referred to as the "suit property") which constitutes the family home where the applicants grew from, be vacated.

That there are many court cases vide HCCS No.119 of 2016, HCCS No.161 of 2016 & **HCCS No.23 of 2010** which have not been decided, yet the administration of justice would normally require that the substance of the disputes be heard and determined on their merits since there are many unresolved issues and the removal of the caveats came as a shock to the applicants.

("Inland")

Further, that the applicants have since not only filed a notice of appeal which was served on the respondents but also requested a certified copy of the proceedings as well as the ruling and they have further applied for leave to appeal.

In addition, that the appeal has a high chance of success and that if the application for stay of execution is not granted the appeal will become nugatory.

By his affidavit in reply, the respondent opposes the application and avers that consequent to the ruling of this court which directed that the caveats be removed, he moved the land office to have the same removed and that the caveats were removed.

- That the administrator of the estate together with the beneficiaries to the deceased's estate 10 implemented the distribution of the three properties, some of which were sold off with the consensus of the family. The applicants were made aware of the same through their lawyers and the applicant passed over their beneficial share of the proceeds of the sale which they acknowledged receipt of. - In addition, that there is nothing to stay since the substantive orders of the court were already 15 executed and that while HCCS No.119 of 2016 was withdrawn in 2018, HCCS No.2 of 2010 was wholly settled and that it is the suit by which the respondent was made administrator while HCCS No.161 of 2016 which is still in court does not involve the respondent at all since they are not parties thereto.

### **Representation:**

20 The applicants were represented by M/s Semuyaba Iga & Co. Advocates while the respondent was represented by *M/s Ambrose Tebyasa & Co. Advocates*

### Consideration by court.

I have carefully read the pleadings, evidence and submissions of both parties which I have taken into consideration in resolving this application.

- 25 The applicants alluded to the fact that if the orders handed down by this court in Miscellaneous Cause No.121 of 2020 are put into effect, the applicants will suffer substantial damage and that he has filed an appeal which has a high chance of success and that the same will be rendered nugatory if the instant application is not granted. They further claim that there are several court cases to wit HCCS No.119 of 2016, HCCS No.161 of 2016 30 & HCCS No.23 of 2010 which ought to be determined on their merits.

$\mathsf{S}$

Counsel further cited the case of P. K Sentongo v Busulwa & Anor CACA No.207 of 2014 for the position that where the subject matter is capable of permanent alienation and capable of causing the appeal to be nugatory, then court will exercise its discretion in favor of the applicant.

Nation of

He further argued that the subject matter in the instant case is land which is capable of permanent alienation and can therefore cause the appeal to be rendered nugatory and cause the applicants to suffer substantial loss or irreparable injury, and therefore it is in the interest of justice that the application be granted.

The respondent on his part claimed that pursuant to the orders of court in Miscellaneous $\mathsf{S}$ Cause No. 121 of 2020, the caveats lodged by the applicants in respect of the suit property have since been vacated, some of the properties sold and that the applicants were made aware of the same and their beneficial share of the proceeds handed to them.

It is now settled law that facts as adduced in affidavit evidence which are neither denied nor rebutted are presumed to be admitted. (See: Eridadi Ahimbisisbwe v World Food Program & others [1998] IV KALR) 32.

It therefore follows that failure to file a rejoinder by the applicants would equally suggest that contents of the affidavit in reply, specifically paragraphs 4, 5, 6, 7 & 8, were admitted by the applicants.

- 15 Attached to the affidavit in reply of the respondent, is **Annexure "A1", "A2" & "A3"**, copies of search statements from the Ministry of Lands, Housing and Urban Development, dated 1st April, 202, which indicate that the property comprised in **Kyadondo Block 249 plots 117** & 118 are registered in the names of Kimbugwe Francis, Ndagire Robinah and Mutebi Ronald and that there are no registered incumbrances in respect of that property; while the property - 20 in **Kyadondo Block 250 plot 201** in the names of the respondent also has no incumbrances; and according to **Annexure "D"**, dated 6th June, 2021, the same has since been transferred to one Kalika Ronald who became the registered proprietor on 22nd April, 2021.

This could only mean that the judgement and orders of this court referred to in the pleadings that were filed on 4th May, 2021 had already been acted upon even before the applicants filed 25 the instant application. To that extent, I find that the application is moot having been overtaken by events since the caveats on the suit property have already been removed and one of the properties sold off and that the other two properties will also be sold off without going through the process of the execution.

Black's Law Dictionary 9th Edition page 1090 defines a "moot case" to mean a matter in which a controversy no longer exists; a case that only presents an abstract question that 30 does not arise from existing facts or rights. (See also: Justice Okumu Wengi vs. Attorney General of Uganda (2007) 600 KaLR), where it was held that for an application and reliefs sought to be moot, it means that the remedies sought cannot be realized.

Also in Human Rights Network for Journalists and Another vs. Uganda Communications Commission, & Others HCMC No. 219 of 2013 court held that a court 35 of law does not decide cases where no live dispute between parties is in existence.

July 19

It does not decide cases or issue orders for academic purposes only. Its orders must have practical effects.

The instant application if granted would be an exercise in futility since the orders for the removal of the caveats on the suit property of this court which the applicants seek to stay were already acted upon, the caveats removed even before the instant application was filed; and the same was clearly brought to the attention of the applicants who even went ahead to receive their share of the proceeds from the sale.

It is therefore apparent that this application for stay of the removal of caveats has been overtaken by events and granting the same would be in vain. As matters stand now, I find nothing to stay.

$15$

$\mathsf{S}$

In the final result, this application is dismissed, with costs.

Unkorg

Alexandra Nkonge Rugadya **Judge**

20 20th October 2021.

Delivered via email Onlarge $G$ . $20/10/2021$