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Kasingirwe and Another v Kabera (Miscellaneous Application No. 1565 of 2022) [2023] UGHCLD 79 (30 March 2023)
- Citation
- [2023] UGHCLD 79
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- HC: Land Division (Uganda)
- Panel
- Kazaarwe, J
- Case number
- Miscellaneous Application No. 1565 of 2022
- Language
- English
More details
- Court
- HC: Land Division (Uganda)
- Panel
- Kazaarwe, J
- Case number
- Miscellaneous Application No. 1565 of 2022
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the application was misconceived because it had already ruled, in its decision of 31st March 2021, that Civil Suit No. 514 of 2017 was not res judicata to Civil Suit No. 7 of 2004. The pending appeal (Civil Appeal No. 11 of 2021) did not alter this position, as the matters in the two suits were distinct. The applicants failed to demonstrate any legal basis for either dismissing or staying Civil Suit No. 514 of 2017. The court therefore dismissed the application, emphasizing that the prior ruling on res judicata was determinative and that the existence of a long-pending appeal did not justify a stay or dismissal in the circumstances.
Court disposition
application dismissed
Orders
- The application is dismissed.
- No order as to costs.
02
Material facts
Parties
Kasingirwa Scovia
Applicant Counsel: M/S Zack Olowo Advocates and SolicitorsNshekanabo Anastanzia
Applicant Counsel: M/S Zack Olowo Advocates and SolicitorsElizabeth Kabera
Respondent03
Procedural history
Posture
Miscellaneous Application / Ruling on Application to Dismiss or Stay Civil Suit
04
Questions and positions
Legal issues
- 01
Whether Civil Suit No. 514 of 2017 is barred by law as res judicata.
- 02
Whether Civil Suit No. 514 of 2017 should be stayed pending determination of Civil Appeal No. 11 of 2021.
Party arguments
- Applicant
- The applicants argued that Civil Suit No. 514 of 2017 is barred by law, specifically on grounds of res judicata, as it arises from the same facts and parties as Civil Suit No. 7 of 2004 and related appeals. In the alternative, they sought a stay of proceedings in Civil Suit No. 514 of 2017 pending the outcome of Civil Appeal No. 11 of 2021, which they contended could affect the determination of the current suit.
- Respondent
- The respondent maintained that the court had already ruled on the issue of res judicata in its decision dated 31st March 2021, finding that Civil Suit No. 514 of 2017 was not res judicata to Civil Suit No. 7 of 2004. The respondent opposed the application for dismissal or stay, arguing that the pending appeal did not warrant a stay of the current proceedings.
05
Court’s reasoning
Legal principles
- 01
Section 7, Civil Procedure Act; Court's ruling dated 31st March 2021
A suit is barred by res judicata if it involves the same parties, subject matter, and issues as a previously adjudicated suit.
- 02
Section 6, Civil Procedure Act; Order 7 rule 11, Civil Procedure Rules
The court has discretion to stay proceedings where the outcome of a pending appeal may affect the suit, but such discretion must be exercised judiciously.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the application was misconceived because it had already ruled, in its decision of 31st March 2021, that Civil Suit No. 514 of 2017 was not res judicata to Civil Suit No. 7 of 2004. The pending appeal (Civil Appeal No. 11 of 2021) did not alter this position, as the matters in the two suits were distinct. The applicants failed to demonstrate any legal basis for either dismissing or staying Civil Suit No. 514 of 2017. The court therefore dismissed the application, emphasizing that the prior ruling on res judicata was determinative and that the existence of a long-pending appeal did not justify a stay or dismissal in the circumstances.
Obiter and limits
- The existence of a pending appeal for over 16 years does not, in itself, justify a stay of proceedings where the issues have already been distinguished by the court.
- A party's change of advocates and unclear position in affidavits does not affect the substantive determination of the application.
Court disposition
application dismissed
- The application is dismissed.
- No order as to costs.
Source and reliance status
HC: Land Division (Uganda)
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
HC: Land Division (Uganda)
Judgment
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(LAND DIVISION)
MISCELLENEOUS APPLICATION NO. 1565 OF 2022
5 (ARISING FROM CIVIL SUIT No. 514 of 2017)
1. KASINGIRWA SCOVIA
2. NSHEKANABO ANASTANZIA-------------------APPLICANTS
V
10 ELIZABETH KABERA-------------------------RESPONDENT
Before: Hon. Lady Justice Olive Kazaarwe Mukwaya
RULING
This is an application seeking an order that Civil Suit No. 514 of 2017 be dismissed on ground that it is barred by law or in the alternative the suit be stayed pending the
15 determination of Civil Appeal No. 11 of 2021 arising from Miscellaneous Application No.1 of 2006 and Civil Suit No. 7 of 2004.
The Application is brought under the provisions of sections 14 and 33 of the Judicature Act, sections 6, 34 and 98 of the Civil Procedure Act, Order 7 rule 11 and Order 52 rule 1 & 2 Civil Procedure Rules.
In its ruling dated 31 20 st March 2021, this court found Civil Suit No. 514 of 2017 was not res judicata to Civil Suit No. 7 of 2004, out of which Civil Appeal No. 11 of 2021 arises.
This application was filed thereafter on the 15th February 2022. The Memorandum of Appeal in issue (Civil Appeal No. 33 of 2006), was only attached to the 1st Applicant's supplementary affidavit in support filed on the 8th November 2022. This is in spite of
that fact that the receiving stamp indicates 12th 25 July 2006. It reads; Civil Appeal No. 33
of 2006 (Nakawa) arising from Miscellaneous Application No. 001 of 2006 and Civil Suit No.
2004. Upon transfer to the Land Division, the appeal was given Civil Appeal No. 11 of 2021. Therefore, prima facie, this appeal, if it exists, has been pending undetermined for the last 16 years.
5 A Notice of Change of Advocates was filed M/S Zack Olowo Advocates and Solicitors as her new advocates as of the 8th September 2022. Since it was the 1st Applicant who deponed the affidavits in support on her behalf, filed by her former Counsel, it is not clear where her position in this application is maintained.
I am of the firm view that this application is misconceived, in light of this Court's
ruling on res judicata dated 31 10 st March 2021 which made a distinction between this suit, Civil Suit No. 514 of 2017 and Civil Suit No. 7 of 2004 out of which Civil Appeal No. 11 of 2021 (formerly Civil Appeal No. 33 of 2006) arises. It is accordingly dismissed with no order as to costs.
-----------------------------------
Olive Kazaarwe Mukwaya
JUDGE
30th March 2023
20 Delivered by email to Counsel for the Applicants.
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