Kabiswa Jimmy and Another v Senkaali Mulondo (Civil Appeal No. 04 of 2023) [2025] UGHCLD 94 (17 June 2025)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

LAND DIVISION

CIVIL APPEAL NO. 04 OF 2023

ARISING FROM ENTEBBE CIVIL SUIT NO. 30 OF 2016

1. KABISWA JIMMY

2. NAKACHWA ROBINAH ………………… APPELLANTS

VERSUS

SENKAALI MULONDO ……………. RESPONDENT

BEFORE HON. LADY JUSTICE FLAVIA NASSUNA MATOVU JUDGEMENT

- 1. This appeal arose from the decision of court in Entebbe Civil Suit No. 30 of 2016 that was passed on 8/12/2022. The appellants being dissatisfied with the said decision lodged this appeal against the same. The grounds of appeal were laid in the memorandum of appeal that was lodged at court on 15/12/2022 and endorsed by the Registrar on 12/01/2023. The appeal is premised on only one ground of appeal to wit; - a) That the learned trial magistrate erred in law and in fact when she unjustifiably denied costs to the appellants upon dismissal of the suit thereby occasionaing a miscarriage of justice. - 2. Counsel for the appellants filed written submissions which I carefully studied. They are on the court record and I need not reproduce them here. The respondent on the other hand did not oppose this appeal and did not file any submissions in reply.

- 3. After carefully studying the entire record of proceedings I noted as follows; - a) The trial magistrate at Entebbe Chief magistrate's court dismissed Civil Suit 30 of 2016 on 8/12/2022 for lack of jurisdiction and ordered each party to bear its own costs. - b) From the said decision of court , no reason was given as to why the court did not award costs to the appellants who had been added to the suit as third parties. S. 27 (1) of the Civil Procedure Act provides that the costs to and incident to all suits shall be in the discretion of the court or judge and the court or judge shall have full power to determine by whom and out of what property and to what extent the costs are to be paid. S.27 (2) further provides that even where the court has no jurisdiction to try the suit it has powers to make a decision on costs and it specifically provides that costs of any action, cause or other matter in issue shall follow the event unless the court or judge shall for good reason otherwise order. (emphasis mine). - c) My understanding of the above provisions is that the successful party should always be awarded costs and if the court or judge decides not to award him or her costs, then reasons should be given. - d) In the instant case the appellants who were the successful parties were not awarded costs and the court did not give reasons for not awarding them costs. This was erroneous of the part of the trial magistrate and for that reason the decision of the trial court that ordered each party to meet its costs is hereby set aside.

- e) This appeal is therefore hereby allowed and it is hereby ordered that the respondent should pay costs of the suit in Entebbe Civil Suit No. 30 of 2016. - f) I however note that this appeal arose as a result of an error committed by court and the respondent did not oppose this appeal. For that reason the appellants shall meet their costs for this appeal.

4. FINAL ORDERS

This appeal is hereby allowed as follows;

- a) The decision of the trial court that ordered each party to pay their costs in Entebbe Civil Suit No. 30 of 2016 is hereby set aside. - b) The respondent/plaintiff should pay costs of the suit in Entebbe Civil Suit No.30 of 2016. - c) The appellants should meet their costs for this appeal.

DATED at Kampala this 17th day of June 2025

JUDGE.