Takiya Kaswahiri v Kajungu (Civil Miscellaneous Application 106 of 2015) [2015] UGCA 2023 (2 October 2015)
Full Case Text
## THE REPUBLIC OF UGANDA
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### INT THE COURT OF APPEAL OF UGANDA
#### AT KAMPALA
## MISCELLANEOUS CTVIL APPLICATION NO. 106 Or 2015
(Arising from Miscellaneous Ciutt Application No. g3 of 2O15, Arising from Court of Appeat Ciuit Appeal No. SS of 2011)
I Takiya Kaswahiri Applicant
#### YERSUS
Kajungu Denis :::::::::::::::::;:::::::::::::::::::::::::::::;::::::::::::::Respondent
Coram: Hon. Justice Remmy Kasule, JA sitting as a single Justice
# o RULING
The applicant seeks an Interim order to restrain the respondent from carr5ring on developments and interfering wit]l the suit land at Kashenyi, Kyera, Birere, Isingiro District.
The dispute of both parties over the suit land started in the Magistrate Grade I Court Mbarara in 2OO7 in Civil Suit No. 0352 of '2OU7. That Court decided rhat appiicant was owner oi' the surt land. The respondent appealed to the High Court, Mbarara, which ruled that respondent was the owner of tlle land. The applicant appealed the High Court decision to tllis Court in Civil Appeal No. 85 of 2011. On L8. O2.2O14 this Court partly dismissed tJre appeal, but set aside the award for general damages and mesne profits.
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The applicant asserts that he instructed his then lawyers, Bwengre a & Company, Advocates, to appeal to the Supreme Court, but they never pursued the appeal apart from filing the Notice of Appeal on 27.02.2014. Applicant then instructed Counsel Kamba Hassan to pursue the appeal.
Counsel Kamba Hassan frled Mlscellaneous Applicatlon No. 83 of 2015 for extension of time to lodge an application for leave to appeal to the Supreme Court on 08. O4.2015.
O The applicant now prays for an interim order to be issued pending disposal of the application for leave; otherwise tJ:e respondent is stated to be disposing of the suit land.
This Court notes that though the Judgment of this Court was delivered on 18.02.2O14, the application for leave to appeal was
lodged in Court on 08. O4.2015, more than a year since the delivery of the said Judgment.
M/S Kamba & Co. Advocates had received instructions of the applicant to appeal by the O3. O4.2OL4 according to annexure "B" to the aflidavit of the applicant. No explanation is given as to why M/S Kamba & Co. Advocates had to file this application more than a year after receipt of such instructions from the applicant.
There is also no information at all from M/S Bwenrye & Co. a Advocates, as to why they never pursued the applicant's instructions to appeal to the Supreme Court.
While to preserve the right of appeal is one of the ends of justice this Court has to enforce, the party seeking preservation of that end of Justice must not be guilty of dilatory conduct in pursuing the said end.
This Court holds that by failing to file the application for leave to O appeal to tJ:e Supreme Court for more tl:an a year, since L8. O2.2O14, when tllis Court delivered its Judgment, the applicant has been of dilatory conduct.
The respondent is entitled to enjoy the fruits of the Court decree, given the fact that the parties have been litigating in Courts of lall since 2007. To issue an interim order in the terms prayed for by
the applicant now, whose conduct in these proceedings is so dilatory, will be to do injustice to the respondent.
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This application, for tl:e reasons stated above, is dismissed udth costs to the respondent.
Dated at Kampala this 2na day of October, 2015
y Kasule Justice ofAppeal