[2025] UGHCFD 50

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) **MISCELLANEOUS APPLICATION NO. 1383 OF 2025** (ARISING FROM CIVIL SUIT NO. 0010 OF 2023)

BUILDNET CONSTRUCTION MATERIALS AND HARDWARE LIMITED

**::::::::::: APPLICANT**

## **VERSUS**

FAUZIA MUWONGE ::::::::::::::::::::::::::::::::::::

**BEFORE HON. JUSTICE JOHN EUDES KEITIRIMA**

## **RULING**

1]. This is an application brought by way of Notice of Motion under Order 52 Rule 1 of the Civil Procedure Rules, Section 98 of the CPA and Section 37 of the Judicature Act Cap 16.

2]. The application is seeking for orders that; -

The order of stay of execution granted by this Court vide M. A. $(i)$ No. 1299 of 2024 be vacated upon the respondent's failure to comply with the conditions on which it was granted.

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applicant be granted vacant possession, quiet and The $(ii)$ undisturbed use and enjoyment of the property comprised in Kyadondo Block 244 Plot 1744 land at Muyenga over which it is the registered proprietor, and

(iii) Costs be provided for.

3]. The application is supported by the affidavit of Dr. Ibrahim Semaganda the Managing Director of the applicant where he affirms inter alia; -

- That the applicant is the registered proprietor of the property $(i)$ comprised in Kyadondo Block 244 Plot 1744 land at Muyenga (the suit property) having legally purchased it from one Jaffer Kagimu the former registered proprietor. - That after the purchase of the property, the respondent filed $(ii)$ Civil Suit No. 10 of 2023 Fauzia Muwonge versus Ibrahim Semaganda & 2 others seeking for orders inter alia to annul the sale of the suit property.

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- That the suit was dismissed on 7^th August 2024 with costs and (iii) the applicant was entitled to undisturbed possession of the suit property. - That upon the dismissal of the suit, the respondent filed M. A. $(iv)$ No. 1299 of 2024 against the applicant and others seeking inter alia for a stay of execution to restrain the applicant from taking possession of the suit property. - That on 25^th February 2025 this Court granted the application $(v)$ on condition that the respondent deposits in Court a sum of One billion, one hundred and two million shillings $(1,102,000,000/=)$ within thirty days which were to end by 27^th March 2025. - That as of 28^th March 2025 the applicant was in contempt $(vi)$ and/or breach of the order of the Court requiring her to deposit the said amount of money in Court. - That the applicant seeks for an order to vacate the order of stay $(vii)$ of execution and an order be issued granting the applicant vacant possession, quiet and undisturbed use and enjoyment of

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the suit property in light of the respondent's contempt and/or breach of the Court order.

That it is just and equitable that the application be allowed. (viii)

4]. In his affidavit in reply Mutyaba Umar Sulaiman the holder of powers of attorney for the respondent stated inter alia; -

- That he has been informed by the respondent's lawyers that $(i)$ the applicant's affidavit in support of the application is fatally defective for being commissioned by a Commissioner for Oath (Tumwebaze Prossy B. Catherine) who has no Advocate's valid practicing certificate for the year 2025. - That he has been informed by his lawyers that the order of $(ii)$ vacant possession and or an eviction order prayed for by the applicant cannot be sought through an application such as the instant one. - That he has been informed by the respondent's lawyers that (iii) the judgment of this Court vide H. C. C. S No. 10 of 2023 did not make orders of vacant possession of the suit property and

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thus seeking the same through this application amounts to abuse of Court process.

- That the respondent has possessory interests in the suit land $(iv)$ and it is improper for the applicant to use the dismissal of H. C. C. S No. 010 of 2023 where the applicant did not have a counter claim to pursue the order of vacant possession of the suit land. - That he is informed by the respondent's lawyers that the only $(v)$ reliefs the applicant is entitled to from H. C. C. S No. 010 of 2023 is the dislodgment of the caveat the respondent had lodged on the suit land and costs of the suit. - That in light of the foregoing and in the interests of fairness $(vi)$ and natural justice this application should be dismissed with costs.

5]. It is only the applicant who filed written submissions within the timelines that were granted by court.

The issues to determine now are; -

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- Whether the order of stay of execution granted by this Court $(i)$ vide M. A No. 1299 of 2024 should be vacated upon the respondent's failure to comply with the conditions on which it was granted. - Whether the applicant should be granted an order of $(ii)$ possession, quiet and undisturbed use and enjoyment of the property comprised in Kyadondo Block 244 Plot 1744 land at Muyenga over which it is the registered proprietor. - (iii) Remedies available to the parties.

**ISSUE ONE: Whether the order of stay of execution granted by this** Court vide M. A No. 1299 of 2024 should be vacated upon the respondent's failure to comply with the conditions on which it was granted.

6]. The application for stay of execution in M. A No. 1299 of 2024 involving the parties herein was granted on condition that the respondent

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deposits in Court either cash or a bank guarantee in a sum of one billion, one hundred and two million shillings $(1,102,000,000/=)$ as security for the due performance of the decree within thirty days from the date of the ruling. The days should have ended by 25^th March 2025. The respondent did not comply with the said condition a fact she does not dispute in her affidavit in reply.

7]. Therefore, the order for stay of execution granted vide M. A No. 1299 of 2024 involving the parties herein will be set aside for failure by the respondent to meet the condition that was set therein in the given timeframe.

ISSUE 2: Whether the Applicant should be granted an order of vacant possession, quiet and undisturbed use and enjoyment of the property comprised in Kyadondo Block 244 Plot 1744 land at Muyenga over which it is the registered proprietor.

8]. It is not disputed that the applicant is the proprietor of land comprised in Block 244 Plot 1744 land at Muyenga. That was

Inely

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established in Civil Suit No. 10 of 2023 involving the parties herein. As a registered proprietor the applicant is entitled to possession and use of the said property.

9]. Section 98 of the Civil Procedure Act Cap 282 provides that "Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court".

10]. Section 37 of the Judicature Act Cap 16 provides that "The High" Court shall, in the exercise of the jurisdiction vested in it by the constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided".

11]. In Civil Suit No. 10 of 2023 involving the parties herein, this Court held inter alia that the respondent had no proprietary interest in the suit property and that the applicant had rightly purchased the suit property.

12]. This Court can therefore grant consequential orders derived from the judgment to give effect to that judgment and to avoid a multiplicity of legal proceedings.

The applicant is therefore entitled to possession and use of the said property as its title is absolute.

13]. The applicant is therefore granted vacant possession, quiet and undisturbed use and enjoyment of the property comprised in Kyadondo Block 244 Plot 1744 land at Muyenga over which it is the registered proprietor without any further delay.

The costs of this application will be granted to the applicant.

Hon. Justice John Eudes Keitirima. 27/06/2025

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