MUKAMUSONI english version

# MUKAMUSONI english version

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2015-07-27 - Case/document no.: RAD 0003/15/CS - Collection: Supreme Court

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MUKAMUSONI V. GOVERNMENT OF RWANDA ET.AL [Rwanda SUPREME COURT – RAD 0003/15/CS (Mukanyundo P.J., Rugabirwa and Ngagi, J.) July 27, 2015] Civil procedure – Withdraw from the case – The acceptance of withdrawing from the case – Self deprivation of the right to action is a self denial of one’s capacity to plead. It is also self deprivation of rights to make a follow up of the claim. Acceptance of another party is not necessary – Law Nº 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 26. Facts : Mukamusoni was ordered to pay to Nteserurwa the damages and those led the court bailiff named Kagaju to make an auction of the house of Mukamusoni for executing the judgment n° RPA 8787/KIG. Mukamusoni sued Kagaju and government of Rwanda at the High Court requesting that the auction should be terminated because it was unlawfully conducted, that Court held that the auction remains its validity. Mukamusoni appealed against that judgment with the Supreme Court, and then also it ruled that the auction remains its validity, after that it ordered the government of Rwanda to pay to Mukamusoni the money she was asked to pay for twice and rested on the price of her house, ans also it ordered Mukamusoni to pay to Kamali Emmanuel the damages. Mukamusoni filed also a claim with this Court praying for a case review but meanwhile she filed a summary procedure requesting the to rule about the suspension of the execution of the judgment RADA 0030/12/CS in case the judgment n° RS/REV/AD 0002/15/CS is not finally decided, because she would not be expulsed from her house because she does not have any place to reside on. Mukamusoni wrote a letter in stating that she withdraws from the case of the summary procedure she was filed to this Court because the judgment n° RADA 0030/12/CS which she requested to not be executed was already executed, and then she was expulsed from the house which she requested for staying in for the period the judgment which is subject to the review was not rendered. Held : Self deprivation of the right to action is a self denial of one’s capacity to plead. It is also self deprivation of rights to make a follow up of the claim. Acceptance of another party is not necessary; therefore Mukamusoni is accepted to withdraw for the claim of summary procedure that she filed because she does not still have the interest to follow it. The claim was withdrawn With the court fees to the public treasury. Statutes and statutory instruments referred to: Law Nº 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 26

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No case referred to. Judgment I. BRIEF BACKGROUND OF THE CASE [1] In term of excuting the judgment n° RPA 8787/KIG, Mukamusoni Béatrice was ordered to pay Ntiserurwa Christophe the damage woth to 3,690,000Frw, on 21 June 2002 the proffession Court bailiff named Kagaju Alphonse made an auction of her house. [2] Mukamusoni Béatrice sued Kagaju Alphonse and government of Rwanda as his employer at the High Court requesting that the auction should be terminated because it was unlawfully conducted, that Court rendered the judgment n° RAD 0078/09/HC/KIG and held that the auction remains its validity. [3] Mukamusoni Béatrice appealed against that judgment with the Supreme Court, it rendered the judgment n° RADA 0030/12/CS on 10 October 2014, it ruled that the auction conducted on 21 June 2002 for the house of Mukamusoni Béatrice located on the plot no112 at Nyagatovu cell, Kimironko sector, Gasabo district, Kigali city remains its validity, it ordered the government of Rwanda to pay to Mukamusoni Béatrice 147,600Frw she was asked to pay for twice and 1,560,000Frw rested on the price of her house, all together are equal to 1,707,600Frw, it ordered Mukamusoni Béatrice to pay to Kamali Emmanuel the damages of 1,800,000Frw. [4] Mukamusoni filed a claim with this Court praying for a case review of the judgment RADA 0030/12/CS mentioned above, that claim was recorded on n° RS/REV/AD 0002/15/CS. [5] Mukamusoni Béatrice filed also in this Court a summary procedure which is relied on main claim n° RS/REV/AD 0002/15/CS requesting the to rule about the suspension of the execution of the judgment RADA 0030/12/Cs in case the judgment n° RS/REV/AD 0002/15/CS is not finally decided, that claim was recorded on RDA0003/15/CS. [6] In her submission, Mukamusoni Béatrice explains that the main ground of her basis for requesting this Court to suspend the execution of the judgment n° RADA 0030/12/CS mentioned above in case the judgment n° RS/REV/AD 0002/15/CS was not finally decided, is that she must not be expulsed from her house because she does not the other place to reside on. [7] On 16 July 2015, Mbonyimpaye Elias, the Counsel for Mukamusoni Béatrice wrote a letter in stating that he withdraws from the case of the summary procedure he was filed to this Court and was recorded on n° RAD 0003/15/CS because the judgment n° RADA 0030/12/CS was already executed, and then she was expulsed from the house which she requested for staying in for the period the judgment which is subject to the review was not rendered. [8] The judgment was heard in public on 21 July 2015, Mukamusoni Béatrice represented by Counsel Mbonyimpaye Elias, whereas the other parties did not appear while they were lawfully summoned.

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II. ANALYSIS OF THE LEGAL ISSUE Determining whether Mukamusoni Béatrice will be accepted for withdrawing from the case [9] Mbonyimpaye Elias, Counsel for Mukamusoni Béatrice states that on the basis of article 26 of Law Nº 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure provides for that if the party made a self depravation of the right to action Acceptance of another party is not necessary, she withdraws from the summary procedure that she filed to this Court on n° RAD 0003/15/CS, because she does not still have the interest to follow it due to the fact that she was already expulsed from her house which she requested to stay in during the case to the subject of review was not finally rendered as she explained in her letter of 16 July 2015 she submitted to the Supreme Court on 16 July 2015. VIEW OF THE COURT [10] Article 26 of Law Nº 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, provides for that “self deprivation of the right to action is a self denial of one’s capacity to plead. It is also self deprivation of rights to make a follow up of the claim. Acceptance of another party is not necessary”. [11] The Court is finding in her pleadings before this Court and in her letter of 16 July2015, Mukamusoni Béatrice accepted that she withdraws from the summary procedure she filed to this Court on n° RAD 0003/15/CS because she does not still have the interest to follow it due to the fact that she was already expulsed from her house, while the motivation which led her to file a claim was to prevent not be expulsed from the house when the case n° RADA 0030/12/CS rendered by this Court on 10 October 2014, that is a subject to the case review is not finally rendered. [12] Basing on article 26 of the law mentioned above and those included in her letter of 16 July 2015 mentioned above, the Court finds that Mukamusoni Béatrice should be accepted to withdraw from her summary procedure that is recorded on n° RAD 0003/15/CS because she lawfully withdraws from it. III. DECISION OF THE COURT [13] It accepts to withdraw from the summary procedure submitted by Mukamusoni Béatrice that is recorded on RAD 0003/15/CS because it was lawfully made. [14] It orders that the Court fees on the side of public treasury.