Me MUHIRE ET. AL v KIGALI BUSINESS CENTER (KBC) LTD

# Me MUHIRE ET. AL v KIGALI BUSINESS CENTER (KBC) LTD

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2024-03-05 - Case/document no.: RS/INJUST/RCOM 00002/2022/SC - Collection: Supreme Court

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Me MUHIRE ET. AL v KIGALI BUSINESS CENTER (KBC) LTD [Rwanda COURT OF APPEAL – RCOMAA 00090/2022/CA (Rukundakuvuga, P.J., Umugwaneza and Munyangeri, J.) October 14, 2022] Auction – Invalidation of an auction – Writing to the Registrar General – Calculating days for writing to the Registrar General – The days mentioned in the instructions of the Registrar General whose calculation formula was not specified, are calculated in the form of consecutive calendar days (jours calendriers consécutifs) – Instructions of the Registrar General Nº 002/2021/ORG of 29/06/2021 modifying the instructions of the Registrar General Nº 001/2020/ORG of 12/05/2020 regulating modalities of management, lease, auction and acquisition of mortgage, article 10 (39 bis).) Laws governing the commercial procedure - Invalidation of an auction – Filing an appeal - Writing to the Registrar General – Instances in which several complementary letters are written - When Registrar General receives several complementary letters, the letter that is relied upon in calculating the time limit in which the Registrar General should have replied to the letter, is the one that was submitted first. Facts: Kigali Business Center (KBC) Ltd applied for a loan from two banks namely Banque Populaire du Rwanda Plc and Equity Bank Rwanda Plc, and mortgaged the immovable property registered under UPI: 1/02/08/01/599; it failed to repay the loan and the property was auctioned by Court Bailiff Muhire Samuel, and it was acquired by Alliance Investment Group Ltd and the receiver wrote a report to the Registrar General, Kigali Business Center (KBC) Ltd wrote to the Registrar General requesting him/her to invalidate that auction, besides, it wrote another complementary letter indicating that among the reasons underlying the request for the invalidation of the auction is the amount required for repayment; the Registrar General in replying to both letters, informed Kigali Business Center (KBC) Ltd that there is no reason to invalidate the auction. Having been dissatisfied with the decision of the Registrar General, Kigali Business Center filed a case before the Commercial Court suing Court Bailiff Muhire requesting the court to invalidate the auction conducted on its property because it is illegal. That Court declared that the case was not admissible because the claimant did not respect the time limit to submit its case to the Registrar General and the time limit to appeal to the Court. KBC Ltd appealed against that judgment before the Commercial High Court claiming that the Court disregarded articles 275 and 276 of Law No 22/2018 of 29/04/2018 Law relating to the civil, commercial, labour and administrative procedure that provide for the way the time limits are counted. The Commercial High Court held that KBC Ltd wrote to the Registrar General within the five days mentioned in the instructions of the Registrar General. It also declared that the case was filed within the time limits provided by the law, based on the fact that these time limits must be calculated from the time the Registrar General received the letter, ordered that the appealed case be sent to the Commercial Court to be tried on the merits without any other court fees.

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Court Bailiff Muhire, Equity Bank Rwanda Plc, Banque Populaire du Rwanda Plc and Alliance Investment Group Ltd appealed to the Court of Appeal claiming that the Commercial High Court misapplied the law governing the calculation of the time limit for requesting he Registrar General to invalidate the auction and the time limit for appealing to the Court, and ruled that Kigali Business Center (KBC) Ltd complied with the time limit while it did not. In their arguments, they allege that the five days provided for in Article 10 (39 bis) of the instructions of the Registrar General should not be calculated in the manner provided for in Articles 275 and 276 of Law No 22/2018 of 29/04/2018 Law relating to the civil, commercial, labour and administrative procedure; which should instead be counted as consecutive calendar days (jours calendriers consécutifs); therefore, the judgment appealed against must be overturned because Kigali Business Center (KBC) Ltd wrote to the Registrar General after the time limit had lapsed. KBC Ltd alleges that in calculating the time limit of 5 days for writing to the Registrar General to point out the flaws in the auction, it should be calculated based on the articles 275 and 276 of Law No 22/2018 of 29/04/2018 Law relating to the civil, commercial, labour and administrative procedure, and alleges that it was not necessary for the Registrar General to assert that the five days mentioned in Article 10 (39 bis) are working days because that article should be considered as complementing Article 260 of Law No 22/2018 of 29/04/2018 mentioned above, it also alleges that article 274 of the law was disregarded because it provides that except when the law provides otherwise, the time limits must be calculated according to the working days, however the instructions of the Registrar General are not a law. Regarding the issue of determining whether the defendant (KBC) delayed to file the case to the Court, it is worth resolving the dispute on the letter prompting the calculation of the reply time limits when the Registrar General received several letters, the appellants alleged that KBC Ltd wrote to the Registrar General requesting them to invalidate the auction, and wrote the second letter which is considered as complementing the first letter and therefore the second letter is different from the first one, they allege that the Commercial High Court should not rely on it in calculating the time limits, it should rather have relied on the first letter. On the side of the defendant (KBC Ltd) it alleges that the letter is not a criterion for calculating the time limits to appeal to the Court but the guideline is the reply of the Registrar General, and he also alleges that the period for the Registrar General to reply should be calculated from the time he/she received the last letter. Held : 1. The days mentioned in the instructions of the Registrar General Nº 002/2021/ORG of 29/06/2021 modifying the instructions of the Registrar General Nº 001/2020/ORG of 12/05/2020 regulating modalities of management, lease, auction and acquisition of mortgage whose calculation formula was not specified, are calculated in the form of consecutive calendar days (jours calendriers consécutifs). 2. When the Registrar General received several complementary letters, the letter that is relied upon in calculating the time limit in which the Registrar General should have replied to the letter, is the one that was submitted first. The appeal has merit. Statutes and statutory instruments referred to:

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Instruction of the Registrar General Nº 002/2021/ORG dated 29/06/2021 modifying instructions of the Registrar General Nº 001/2020/0rg dated 12/05/2020/ORG regulating management, leasing, auction sale, article 10 (39 bis). Cases referred to: Judgment RADA 0001/11/CS; KIST v Hashakimana Anastase rendered by the Supreme Court on 27/04/2012, Judgment RCOMA 00026/2019/HCC; Ngabonziza Joseph v Rugimbana Jean Claude et al. rendered by the Commercial Court on 01/03/2019, Case RCOMA 00546/2022/HCC; UWERA Astrid v MUHAYIMANA Pelagie et al. rendered by the High Commercial Court on 02/09/2022. Judgment I. BRIEF BACKGROUND OF THE CASE

Kigali Business Center (KBC) Ltd applied for a loan from two banks, namely Banque Populaire du Rwanda Plc and Equity Bank Rwanda Plc, and mortgaged the immovable property registered under UPI: 1/02/08/01/599. Kigali Business Center (KBC) Ltd failed to repay the loan, thus on 02/08/2022 that property was auctioned by Court bailiff Muhire Samuel, and it was bought by Alliance Investment Group Ltd.

On 04/08/2022, Mr. Muhire Samuel wrote the auction report and submitted it to the Registrar General. On 09/08/2022, Kigali Business Center (KBC) Ltd wrote to the Registrar General requesting him/her to invalidate the auction, and on 10/08/2022, again it wrote another letter that it alleged to be complementing the first one, indicating that among the reasons why he requested to invalidate the auction was the issue of the amount of loan to be repaid. The Registrar General replied to both letters on 17/08/2022, informing Kigali Business Center (KBC) Ltd that there is no reason to invalidate the auction.

On 23/08/2022, Kigali Business Center (KBC) Ltd filed a case before the Commercial Court suing Court Bailiff Muhire Samuel, requesting the Court to invalidate the auction of his property because it was carried out in breach of the law. Equity Bank Rwanda Plc, Banque Populaire du Rwanda Plc and Alliance Investment Group Ltd voluntarily intervened in the case. Equity Bank Rwanda Plc and Banque Populaire du Rwanda Plc raised the objection of inadmissibility of the case alleging that the time limit to request the Registrar General to invalidate the auction was lapsed. Court Bailiff Muhire Samuel and all the defendants presented another objection of inadmissibility of the case because the time limit for filing the appeal to the Court was not complied with.

In the judgment RCOM 01314/2022/TC rendered by the Commercial Court on 06/09/2022, the Court held that the claim of Kigali Business Center (KBC) Ltd was inadmissible because the time limit for submitting it to the Registrar General and for filing a case before the court had expired.

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Kigali Business Center (KBC) Ltd was not satisfied with that decision and appealed against it before the Commercial High Court alleging that Commercial Court disregarded articles 275 and 276 of Law No 22/2018 of 29/04/2018 Law relating to the civil, commercial, labour and administrative procedure that provides for calculating the time limits. It criticizes what the Court established that his case was not admissible because the appeal to the Registrar General was not submitted within 5 consecutive days and exceeded the time limit for appealing to the Court because it filed the case based on when it received the response from the Registrar General and the latter had delayed to reply.

In the judgment RCOMA 00594/2022/HCC, rendered on 23/09/2022, the Commercial High Court held that Kigali Business Center (KBC) Ltd wrote to the Registrar General that the five days mentioned in the instructions of the Registrar General had not expired according to articles 275 and 276 of the aforementioned law. It also confirmed that its claim was filed within the time limits provided for by law, based on the fact that these time limits should be calculated from the time when the Registrar General received the letter of Kigali Business Center Ltd complementing the first one. It ordered that the appealed judgment RCOM 01314/2022/TC be transferred to the Commercial Court for hearing on the merits without further court fees granted.

Court Bailiff Muhire Samuel, Equity Bank Rwanda Plc, Banque Populaire du Rwanda Plc and Alliance Investment Group Ltd appealed against the decision before the Court of Appeal and their appeals were combined into case RCOMAA 00090/2022/CA.

The public hearing was scheduled on 11/10/2022. On that day, Counsel Abasa Fazili representing Court Bailiff Muhire Samuel; Banque Populaire du Rwanda Plc represented by Counsel Mubangizi Frank; Alliance Investment Group Ltd represented by Counsel Kayigirwa Telesphore; Equity Bank Rwanda Plc was represented by Counsel Karemera Frank and Kigali Business Center (KBC) Ltd was represented by Mr Karayiga William and Counsel Mudenge Richard.

In their appeal the appellants allege that the Commercial High Court misapplied the laws governing the calculation of the time limits for request the Registrar General to invalidate the auction and the time limits to file the case to the court, and confirmed that Kigali Business Center (KBC) Ltd complied with the time limits whereas it did not. Another criticism is that the Commercial High Court relied upon the provisions of the criminal law that are not related to the issue of invalidating the auction, without showing any criticism of the elucidations by the Commercial Court. Court Bailiff Muhire Samuel and Equity Bank Rwanda Plc request reimbursement of the cost of proceedings and the advocate fee, but in particular Court Bailiff Muhire Samuel requests compensation for having been dragged thouth the courts. II. LEGAL ISSUES AND ANALYSIS THERETO

In this case the Court finds that the legal issues to be determined are as follows: a. Determining whether Kigali Business Center (KBC) Ltd delayed to write to the Registrar requesting him to invalidate the auction; b. Determining whether Kigali Business Center (KBC) Ltd filed the case to the court when the time limit had already lapsed;

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c. Regarding the damages, advocate fee and the cost of proceedings.

Determining whether Kigali Business Center (KBC) Ltd wrote to the Registrar General when the time limits had expired

Equity Bank Rwanda Plc and Banque Populaire du Rwanda Plc criticize the way the High Court calculated the time limits for writing to the Registrar General and the way it analyzed Article 10 (39 bis) of the instructions of the Registrar General amending the instructions of the Registrar General nº 001/2020/ORG of 12/05/2020 regulating modalities of management, lease, auction and acquisition of mortgage.

Regarding the calculation of the time limits, the representative of Equity Bank Rwanda Plc alleges that the Commercial High Court calculated the five days for writing to the Registrar General referred to in Article 10 (39 bis) of the instructions of the Registrar General mentioned above as if they were working days, which is not correct. He alleges that according to those instructions, where the Regitrar General wanted the scheduled days to be calculated as working days, he/she indicated it. He provides examples of articles 8(2), 9, 10, 16, 20 and 21 of the instructions of the Registrar General amending the instructions of the Registrar General nº 001/2020/ORG of 12/05/20201. He explains that this means that in other cases in which they did not mention it, thise days are counted as consecutive calendar days.

The representative of Equity Bank Plc also criticizes the way in analyzing article 10 (39 bis) of the instructions of the Registrar General mentioned above, the Commercial High Court combined it with article 260 of Law No 22/2018 of 29/04/2018 Law relating to the civil, commercial, labour and administrative procedure ignores that these instructions have nothing to do with the law, because they are based on law n° 10/2009 of 14/05/2009 on mortgages as modified todate.

The representative of Banque Populaire du Rwanda Plc also alleges that the Commercial High Court calculated those days in accordance with articles 275 and 276 of Law No 22/2018 of 29/04/2018 mentioned above ignoring the fact that that article 10 (39 bis) of the instructions of the Registrar General provides for five (5) days from the day the auction report is issued. He alleges that the way the article is written means that even the day the report is received is calculated.

All the appellants agree that the five days provided for in Article 10 (39 bis) of the instruction of the Registrar General mentioned above should not be counted in the manner provided for in Articles 275 and 276 of Law No 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure. Those days should instead be counted as consecutive calendar days; therefore, the appealed judgment must be overturned because it is

1 Article 8 relating to the ratification of the mortgage management plan states 7 working days; Article 9 relating to the notification of the ratified management plan that states 5 working days; Article 10 relating to the amendment of the ratified mortgage management plan that states 7 working days; Article 16 relating to the ratification of the final report on mortgage management, which states 7 working days; Article 20 relates to mortgage lease agreement is scheduled for 2 working days to submit a copy of the agreement to the Registrar General and Article 21 is about the commencement of mortgage lease agreement and it states 7 working days.

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obvious that Kigali Business Center (KBC) Ltd wrote to the Registrar General that the legal time limit had lapsed.

The representatives of Kigali Business Center (KBC) Ltd replied that in the calculation of time limit of the five (5) days referred to in Article 10 (39bis) of the instructions of the Registrar General Nº 002/2021/Org of 29/06/2021 mentioned above, it must be based on Articles 275 and 276 and the Commercial High Court elucidated that sufficiently in paragraphs 25 to 35 of the appealed judgment. They explain that it is not necessary for the Registrar General to say that the five days mentioned in Article 10 (39 Bis) are working days because that article should be considered as complementing Article 260 of Law No 22/2018 of 29/04/2018. They also say that article 274 of the law was not ignored because it provides that except when the law provides otherwise, the time limits must be calculated based on the working days, however the instructions of the Registrar are not a law. They add that if the Registrar General found that Kigali Business Center (KBC) Ltd had exceeded the time limits for requesting that the auction be invalidated, he would have replied that it had lapsed; yet he did not reply in this way.

In conclusion, they indicate that the auction report was written on 04/08/2022, Kigali Business Center (KBC) Ltd wrote to the Registrar General on 09/08/2022, on 10/08/2022 they wrote a letter complementing the first. Based on the provisions of articles 275 and 276 of Law NO 22/2018 mentioned above, the day of the event, weekends and the holiday that took place on 08/05/2022 Umuganura Day) are not calculated. Therefore, writing to the Registrar General should have calculating on 08/08/2022; it is clear that Kigali Business Center (KBC) Ltd wrote to the Registrar General within the time limits provided for by law.

DETERMINATION OF THE COURT

The debate on this point is based on determining whether the five days mentioned in the instructions of the Registrar General to request in writing for the cancellation of the auction are consecutive days or if they are the days calculated after deducting holidays and weekends. The dispute is also based on determining whether the day on which the auction report was received is included in the five days or not.

Article 10 (39 bis) of the instructions of the Registrar General amending the instructions of the Registrar General nº 001/2020/ORG of 12/05/2020 regulating modalities of management, lease, auction and acquisition of mortgage provides that “ an interested person who is not satisfied with the auction or its proceeding may, within five (5) days from the date of receipt of the auction report, request in writing the Registrar General to examine the alleged flaw and take the appropriate decision. The complainant reserves a copy to the receiver.”

In this article, the Registrar General has set a time limit of five days but did not specify whether they are consecutive days or whether they are working days. So far, there has been no precedent on this matter, either in the Supreme Court or the Court of Appeal. The High Court in resolving this issue in the appealed judgment explained that the days referred to in Article 10 (39bis) of the instructions of the Registrar General must be calculated after subtracting weekends and holidays, because that article was added to the instructions as a complement to the provisions of Article 260 of Law No. 22/2018 of 29/04/2018 Law relating to the civil, commercial, labour

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and administrative procedure, so the time limits provided for in that article must be calculated based on the procedure provided for by that law.

Indeed, Article 260 referred to in its paragraph 5 provides that the suspension or invalidation of auction conducted based on the decision of the Registrar General is requested from the Registrar General. The Registrar General responds within three (3) working days". Therefore, the fact that the article does not mention the time limit during which the Registrar General is required to do so, it is understood that the instructions of the Registrar General seem to explain the time limit for writing to the Registrar General. However, this Court finds that asserting that these instructions implement the provisions of Article 260 is not true, because as it appears from its preamble, these istructions stem from Law No. 10/2009 of 14/05/2010 on mortgages as amended todate, especially in its Article 19. It is clear that it is possible to determine the time limits mentioned in these instructions without regard to the provisions of the law relating to the civil, commercial, labour and administrative procedure.

This Court finds that, when looking at the cases decided regarding the calculation of other time limits mentioned in the instructions of the Registrar General where they did not explain how they are calculated, those cases confirmed that these time limits are counted in the form of consecutive days. An example is the case RCOMA 00546/2022/HCC decided on 02/09/2022, in Uwera Astrid v Muhayimana Pelagie et al.2, in which the High Commercial Court examined whether the time limit of ten (10) days of announcing the auction referred to in Article 29 of the instructions of the Registrar General N° 001/2020/ORG were respected, confirming that it was complied with by calculating 10 days in consecutive days. There is also a case RCOMA 00026/2019/HCC decided by that Court on 01/03/2019, in Ngabonziza Joseph v Rugimbana Jean Claude et al., which examined whether the 7-day time limit referred to in Article 12 of the instructions of the Registrar General N°03/2010/ORG of 16/11/2010 has been complied with, and confirmed that it was observed by calculating consecutive days.3

What these cases have in common is that they shed light on the calculation of the time limits mentioned in the instructions of the Registrar General in case they do not specify how they are calculated; which was the light that was supposed to illuminate the Commercial High Court in the case under appeal. Indeed, as provided for in the instructions of the President of the Supreme Court 4, the court must follow the existing precedent set in cases on issues similar to the ones it

2 In this judgment, in paragraphs 25-26, the Court analyzed whether the 10-day time limit provided for in Article 29 of the instructions of the Registrar General was respected, and found that the announcements were published on 25/5/2022 for ISANGO STAR, and on 26/5/2022 for Amakuru Media Ltd, the auction started on 06/6/2022 and held that there are ten days, thus, the time limit provided for by the law was respected. 3 In this judgment from paragraph 13 to paragraph 17, the Court analyzed the reason for the 7 days provided for in article 12 of Instructions of the Registrar General n° 001/2020/org of 12/05/2020 regulating modalities of management, lease, auction and acquisition of mortgage, and also examined whether those days were complied with. It found that there are some instances in which they were complied with and others in which there were not. As for the auction that was supposed to be held on 18/08/2017 and its announcement was issued to the sector on 11/08/2017, it confirmed that in this case the time limit was complied with and it is clear that working cnscutive days were calculated. 4 Instructions no 001/2021 of 15/03/2021 of the President of the Supreme Court regulating the publication of cases in the law report, in its article 9-paragraph two provides that "Each judge is obliged to respect the existing precedent, whether it is at the level of the Court he/she is in, or higher in accordance with the hierarchy of courts." These instructions can be found at: https://www.judiciary.gov.rw/fileadmin/Publications/Laws/3__Amabwiriza_CJ_- _Ibyegeranyo.pdf

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examines. Therefore, the fact that the Commercial High Court violated that precedent without basing on any undisputable reason, this Court finds that it is an error that needs to be corrected, and and established that there is no calculation formula of the days mentioned in the instructions of the Registrar General, that they are calculated in the form of consecutive days as the Court usually does it.

And when it comes to determining whether the day of the event is included in the days provided for in article 10 39(bis) of the instructions of the Registrar General, the Court finds that the expression “from” often recurs in the law regarding the calculation of time limits, both in the law relating to the civil, commercial, labour and administrative procedure (275)5 and in the law relating to the criminal procedure (Article 262)6, those laws provide that the day of the act is not included in the time provided in days. This court therefore finds no special reason to make the expresssion “from” appears in the instruction of the Registrar General mentioned above, which is understood in another way.

In this case, the auction report was submitted on 04/08/2022, Kigali Business Center (KCB) Ltd wrote to the Registrar General for the first time on 09/08/2022, and wrote to him again the complementary letter on 10/08/2022.

Based on the fact that time limits must be calculated in terms of consecutive days as elucidated above, it means that the letter written by Kigali Business Center (KCB) Ltd on 09/08/2022 was written within the time limit provided for by law; while the one written on 10/08/2022 appears to have been written beyond the time limit provided for by law. b) Determining whether Kigali Business Center (KBC) Ltd filed the case after the time limit had lapsed

The representative of Court Bailiff Muhire Samuel alleges that the Commercial High Court calculated the time limit, from the letter of Kigali Business Center (KBC Ltd) dated 10/08/2022, however that letter was the second one. He alleges that as per the analysis of the provisions of the law, it is obvious that the written request to the Registrar General is done once, but the person who wrote the letter would find that what he/she wrote earlier was unclear and would write another second letter which is considered as complementing the first one, this is what Kigali Business Center (KBC) Ltd did. He alleges that even if the letter dated of 10/08/2022 was called the second letter different from the first, the Commercial High Court should not have relied upon it in calculating the time limit to file a case, because the flaw contained in it the amount of loan that Kigali Business Center (KBC) Ltd relied upon as the reason for invalidating the auction, was not submitted to the Court. This means that even Kigali Business Center (KBC) Ltd. itself flouted it; therefore, it should not be relied upon to calculate the time limits for appeal to the Court, but should have relied upon the letter of 09/08/2022.

5 This Article 275 of Law 22/2018 of 29/04/2018 Law relating to the civil, commercial, labour and administrative procedure provides that " the time limits set in terms of days or hours shall be calculated from date to date, or hour to hour. The day of the act or event that gave rise to the claim is not taken into account but the day of expiration is included. » 6 See paragraph 14 of the judgment RADA 0001/11/CS rendered by the Supreme Court on 27/04/2012 in KIST v Hashakimana Anastase

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He also alleges that the Commercial High Court applied Article 9 of the Law on Civil, Commercial, Labor and Administrative Procedures, providing that that there is no law in force that determines how to calculate the time limits when multiple letters are written, and resorted to Article 7 of Law nº 027/2019 of 19/09/2019 relating to the criminal procedure regarding the time to start calculating the prescription of the public action: things that are irrelevant to the debated issues in this case.

Equity Bank Rwanda Plc, Banque Populaire du Rwanda Plc na Alliance Investment Group Ltd allege that the person applying for the invalidation of an auction can write as many times as they want as long as they are within the ambit of time limits provided by the law, but his first letter is the one that is taken into account to calculate the time limit to get a reply, because all the others are complementary. They allege that since the Registrar General did not reply to the first letter on time, the time limits are to be calculated starting from the the last day Kigali Business Center (KBC) Ltd should have received a response; therefore, due to the fact that they wrote for the first time on 09/08/2022, the deadline for the response was 12/08/2022. The time to appeal to the court should have been calculated from that date, instead of calculating from the late reply. They explain that, from the date they should have received the answer on 12/08/2022, excluding weekends and official holidays, Kigali Business Center (KBC) Ltd should not have gone beyond the 22/08/2022 before filing the case before the Court; however, it the case was filed late on 23/08/2022.

The representatives of Kigali Business Center (KBC) Ltd allege that the letter is not the criterion for calculating the time limit for filing a case before the court but the criterion is the reply of the Registrar General pursuant to article 260, the last paragraph of Law No 22/2018 of 29/04/2018 Law relating to the civil, commercial, labour and administrative procedure, and especially that the complaint is based on dissatisfaction with the decision of the Registrar General. They explain that the Registrar General replied on 17/08/2022, Kigali Business Center (KBC) Ltd filed its claim on 23/08/2022, because 20/08/2022 and 21/08/2022 were weekends and are not counted as provided by articles 275 and 276 of Law NO 22/2018 dated 29/04/2018 mentioned above.

The representatives of Kigali Business Center (KBC) Ltd also allege that apart from that, it should not be considered that the Registrar General delayed replying because as elucidated by the Commercial High Court, the time limits for the Registrar General to reply should be calculated from the time he/she received the last letter, i.e. on 10/08/2022. They allege that the claim by the plaintiffs that the reasons contained in the last letter Kigali Business Center (KBC) Ltd did not refer to it among the reasons that led it to appeal to the Court, are irrelevant because it can be satisfied with the explanations given on that point and find it unnecessary to submit it to the Court again. Therefore, they find that the Commercial High Court made no error that should be corrected by the Court of Appeal. DETERMINATION OF THE COURT

The debated issue on this point is based on determining the letter triggering the calculation of time limits for reply in case the Registrar received multiple letters. In other words, when does the calculation of the three-day time limit for the Registrar General to respond to the applicant requesting for invalidating the auction sart in case the Registrar General received multiple letters?

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In case of delayed reply, what is the starting point for the calculation of the time limit? From his/her reply or from the the deadline for reply?

Article 260 paragraph 5 of the Law Nº 22/2018 of 29/04/2018 Law relating to the civil, commercial, labour and administrative procedure provides that the suspension or invalidation of auction conducted basing on the decision of the Registrar General is requested from the Registrar General. The Registrar General responds within three (3) working days. In case there is a party not satisfied by the decision of the Registrar General or who does not get the reply within the time limit provided for by in this paragraph, the party files a claim in the commercial court in accordance with provisions of this Article within five (5) working days starting from the date the party was notified of the decision.

This article means that the Registrar General may or may not reply within the foreseen time limit of three days. In case he/she does not reply within three days, the person who wrote to him/her must immediately file a case before the court within five days. Even in case he/she replies within that time limit, an applicant who is not satisfied with his/her reply, he/she files a case before a court within five days from the time he/she received the reply. This also means that in case the Registrar General delays to reply to the complaint, this does not allow the complainant to first wait for his/her reply in order to file a case to the court.

Regarding the letter that should be the basis for the calculation of the time limits for the Registrar General to reply when the latter had received the letters complementing one another, this Court finds that a similar issue was examined on the case RADA 0001/11/CS on 27/04/20127 , where the Supreme Court held that when there is repeated appeal to the Registrar General, the first appeal is the starting point for the calculation of the time limit to file a case before a court. That precedent was followed in subsequent cases8 . Therefore, on the issues related to the request submitted to the Registrar General in the complementary letters, this Court finds that the first letter is the one that should be taken into account to start calculate the time limits within which the Registrar General must have replied.

In this case, Kigali Business Center Ltd first wrote to the Registrar General on 09/08/2022, from that date if someone calculates three days, he/she will realize that the Registrar General should have replied no later than 12/08/2022, but he did not reply at that time but instead replied on 17/08/2022. That means that the five-day time limit for filing a case before the court, provided for by the law was to be counted from the date of 12/08/2022, excluding that day. Therefore, the case should have been filed not later than 22/08/2022, has not been filed. However, it is clear that Kigali Business Center (KBC) Ltd filed its case on 23/08/2022.

For these reasons, the Court of Appeal finds that Kigali Business Center (KBC) Ltd did not comply with the time limits provided for by the law, in filing the case to the court. Thus, the Commercial High Court erred in holding that its complaint should have been admitted to the Commercial Court.

7 See paragraph 14 of the judgment RADA 0001/11/CS rendered by the Supreme Court on 27/04/2012 in KIST v Hashakimana Anastase 8 See judgment RADA 0029/11/CS rendered by the Supreme Court on 16/05/2014 in Gwakaya Emmanuel v the University of Rwanda

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c) With regard to damages, advocate fee and the cost of proceedings

The representative of Court Bailiff Muhire Samuel requests the Court to order Kigali Business Center (KBC) Ltd to pay him 1,000,000 Frw for advocate fee and 500,000 Frw for the cost of proceedings and 2,000,000 Frw for dragging him through the courts.

And Equity Bank Rwanda Plc alleges that in case the Court finds that its appeal has merit, it would order Kigali Business Center (KBC) Ltd to refund the money it paid in this case from the first instance level to this level amounting to 3,000,000 Frw for advocate fee and 1,000,000 frw for the cost of proceedings.

Kigali Business Center KBC Ltd alleges that the damages requested by Court Bailiff Muhire Samuel should not be granted because he was the one who made the mistake of conducting the auction in an illegal manner. It also alleges that the damages requested by Equity Bank Rwanda Plc are irrelevant because it is the one that brought it voluntarily in this case.

Kigali Business Center KBC Ltd also alleges that since the appellants lost the case for founded reasons but continue to involve it in unnecessary cases, all the appellants should be ordered to pay it 3,000,000 Frw as advocate fee and 1,000,000 Frw for the cost of proceedings. DETERMINATION OF THE COURT

Article 111 of Law No 22/2018 of 29/04/2018 Law relating to the civil, commercial, labour and administrative procedure provideS that the claim for representation fees is an incidental claim to the principal claim aiming to repay expenses incurred during judicial proceedings.

The court finds that the advocate fee and the cost of proceedings requested by Court Bailiff Muhire Samuel are appropriate because since the cases started until now, he hired a lawyer to represent him in these cases and follow them up. Therefore, he is granted at the discretion of the Court 700,000 Frw for advocate fee and 300,000 Frw for the cost of proceedings, because he does not provide evidence that he lost the five hundred thousand Rwandan Francs requested for the cost of proceedings.

As for Equity Bank Plc, the Court finds that when the case started in the Commercial Court, Kigali Business Center Ltd did not sue Equity Bank Plc, but it was the latter that voluntarily intervened in these cases. Therefore, nobody is liable for the advocate fee and the cost of proceedings it lost.

Regarding Kigali Business Center Ltd, the Court finds that it should not be granted the advocate fee and for the cost of proceedings because it was the one who sued late, and therefore it should also be responsible for its losses in these cases.

As for the damages requested by Court Bailiff Muhire Samuel for having been involved unnecessarily in cases, the Court finds that they are not appropriate because in the appeal to the court there is no evidence that Kigali Business Center was aiming not only at complicating things, but at protecting its rights.

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III. DECISION OF THE COURT

Declares that the appeal filed by Court Bailiff Muhire Samuel, Equity Bank Plc, Banque Populaire du Rwanda Plc, Alliance Investment Group Ltd has merit;

Declares that the judgment RCOMA 00594/2022/HCC rendered by the Commercial High on 23/09/2022 is hereby overturned ;

Declares that the case filed by Kigali Business Center (KBC) Ltd for invalidation of the auction conducted by Court Bailiff Muhire Samuel, on 02/08/2022, on the property registered under UPI 1/02/08/01/599, should not have been admitted by the Commercial Court;

Declares that the damages requested by Court Bailiff Muhire Samuel for having been involved in the cases unnecessarily as well as those requested by Kigali Business Center Ltd. are groundless;

Orders Kigali Business Center to pay Muhire Samuel, one million Rwandan francs (1,000,000 Frw) including the advocate fee and the cost of proceedings ; Orders Kigali Business Center (KBC) Ltd to refund Court Bailiff Muhire Samuel, the court fees paid at this level.