[2025] UGHCLD 144

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

# **(LAND DIVISION)**

#### **MISCELLANEOUS APPLICATION NO.3187 OF 2024**

# **(ARISING FROM CIVIL SUIT NO.672 OF 2024)**

#### **1. BULAYI GEOFREY**

# **2. KANTINTI EDWARD MBAZIRA ::::::::::::::::::::::: APPLICANTS VERSUS**

- **1. PATRICK JAMES BATANDA** - **2. BANK OF BARODA(UG)LTD** - **3. BIGIRWA B. JOHNSON**

## **4. COMMISSIONER LAND REGISTRATION ::::::::: RESPONDENTS**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING**

### *Introduction;*

**1.** The applicants brought this application against the respondents under Sections 33 and 35 of the Judicature Act, Sections 82 and 98 of the Civil Procedure Act, Order 46 rules 1 and 8, Order 51 rules 1 and 3 of the civil procedure rules for orders that;

- i) The ruling and orders given in Civil suit No. 672 of 2024 be reviewed and be substituted with appropriate orders. - *ii)* Costs of this application be provided for

## *Applicant's evidence;*

- **2.** The Application is supported by affidavit deponed by the 2nd applicant which briefly states as follows; - i) That I am aggrieved by the abatement ruling and decision delivered by her Lordship Lady Justice Olive Kazaarwe Mukwaya in Civil Suit No. 673 of 2024 - ii) That the said ruling affects my interest in HCCS No 672 of 2024 Bulayi Geoffrey and Kantinti Edward Mbaziira vs Patrick James Batanda, Bank of Uganda, Bigirwa B. Johnson and Commissioner land registration where Kyadondo Block 253 Plot 415 land at Lukuli is the subject matter. - iii) That the 1st respondent illegally and fraudulently moved this honorable court on 10/10/2024 to abate HCCS 672 of 2024 on pretext of not having requested for summons for directions yet the applications had already diligently

requested for the same in this court on 27th August 2024 and even filed on ECCMIS.

- iv) That I have since filed MA 2990 of 2024 and MA 2991 of 2024 arising from HCCS No 672 of 2024 seeking for temporary and interim order injunctions against the respondents. - v) That I and my co-applicants are not parties to HCCS No 673 of 2024 as the parties therein are strangers to me but we only know HCCS 672 OF 2024 that we instituted in this court where I have a personal ECCMIS account. - vi) That when I filed MA 2991 of 2024, which was fixed for hearing on 21st /11/24, the deputy registrar was not aware of the abatement order in HCCS No 672 of 2024 as it had not even been filed on ECCMIS account of HCCS No. 672 of 2024. - vii) That all the above discovery forms a new and important piece of evidence that would warrant a review of the said ruling by this court.

#### *1st Respondent's evidence;*

- **3.** The application is responded to by an affidavit in reply deponed by Mr. Joseph B. Rukanyangira, lawyer for the 1st respondent which briefly stated as follows; - i) That the application for abatement of the suit was correctly and lawfully in accordance with the rules after the applicants herein had failed to take out summons for directions. - ii) That MA No 2990 and 2991 of 2024 were both dismissed on the 8th of January 2024. - iii) That court inadvertently indicated that CS No 673 instead of number 672 but that error was subsequently corrected. - iv) That the remedy for review is not available to the applicants.

# *2nd respondent's evidence;*

**4.** The application is responded to by an affidavit in reply deponed By Mr Ahmed Ssenkumba, the manager legal compliance at the 2nd respondent which briefly states as follows;

- i) That the instant application was filed on the 14th January 2025 and served onto the respondent's lawyer on the 13th June 2025. - ii) That the instant application was served onto the 2nd respondent's lawyers after the expiration of 21 days from the date of issuance. - iii) That at the time the instant application was served on the 2nd respondent's lawyers the same had already expired and there is no proper application before this honorable court.

#### *3rd and 4th respondent's evidence;*

- **5.** This application is responded to by an affidavit in reply deponed by Ssekitto Moses on behalf of the 3rd and 4th respondents which briefly states as follows; - i) That the 3rd and 4th respondents shall raise a preliminary objection that the instant application raises no reasonable cause of action against the 3rd and 4th respondents and its not appropriate for review or setting aside since once the suit abates, the applicants can only file a fresh suit.

ii) That the allegations in the notice of motion are not within the knowledge of the 3rd and 4th respondents, they aver that it has been filed in bad faith and intended to mislead this honorable court and its not in the interest of justice and equity.

# *Representation;*

**6.** The applicants were represented by M/S Katongole & Co Advocates whereas the 1st respondent was represented by KRK Advocates, the 2nd respondent was represented by H & G Advocates, the 3rd and 4th respondents were represented by the office of titles from Ministry of Lands, Housing and Urban Development. Parties filed written submissions which I have considered in the determination of this ruling.

# *Issues for determination;*

*Whether the instant application is properly brought before this court? Whether the instant application discloses any grounds for review? What remedies are available to the parties?*

*Issues for determination and resolution;*

Issue 1; whether the instant application is properly brought before this court;

- **7.** Counsel for the 1st respondent raised a preliminary objection to the effect that the main suit from which the instant application arises was abated and can only be revived by filing a fresh suit subject to the law of limitation not filing an application for review. Counsel relied on the decision of Lady Justice Immaculate Busingye in Kalemera Sam Wilson vs Kaggwa Christopher Chris, HCMA 776 of 2023 where the learned judge held that an abated suit cannot be revived by way of an application for review and that the only option available to the applicant is to file a fresh suit subject to the law of limitation. - **8.** In reply, counsel for the applicants submitted that the preliminary objection raised by counsel for the 1st respondent is one that requires evidence and best resolved in the main suit. Counsel further submitted that in determining a preliminary point of law, the court must consider the pleadings and assume the contents therein to be correct as per the

decision in **Lweza Clays & Anor vs Tropical Bank and Anor, SCCA 31 OF 2018.**

- **9.** A preliminary point of law is one that can be raised at any time during the proceedings of court and if argued may dispose off the suit as stated in the case of **Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors (1969)1 EA 696**. - **10.** The crux of the point of law before thus court is as to whether an abated suit can be reinstated by way of an application for review or not? - **11.** The main suit herein Civil Suit No. 672 of 2024 was abated by her lordship lady Justice Kazaarwe on the 18th of October 2024 as per the ruling attached onto the application. - **12.** The civil procedure (amendment) rules 2019 under order XIA rule 1(2) provide that where a suit has been instituted by way of a plaint, the plaintiff shall take out summons for direction within 28 days from the date of the last reply or rejoinder. - **13.** In a situation where the plaintiff fails to take out summons for directions, the reply to the same lies under order XIA rule 1 sub rule 6 of the civil procedure rules which states that if the

plaintiff does not take out summons for directions in accordance with the sub rule 2 or 6, the suit shall abate.

- **14.** Upon abatement of the said suit, the remedy lies under order XIA rule 1 sub rule 1(7) which states that where a suit has abated, the plaintiff may subject to the law of limitation, file a fresh suit. - **15.** This is the situation in the instant application, the suit the applicants seek to review is one that abated for failure to extract summons for directions and the remedy lies in the civil procedure rules as amened which is filing a fresh suit subject to the law on limitation. - **16.** I find it procedurally impossible for an abated suit to be revived through an application of such a nature as stated by my learned sister Justice Immaculate Busingye in Kalemesa Samuel Wilson vs Kaggwa Christopher chris (supra). - **17.** Further in the decision of **Abdul Ddamulira vs Mss Xsabo Power Limited, HCMA No. 046 of 21,** court held that once a suit abates, any application to re-instate the suit is untenable and the only remedy is to file a fresh suit subject to the law of limitation.

**18.** In conclusion, it's to the findings of this court that the instant application is improperly brought before this court and the same is hereby dismissed with no orders as to costs.

# **NALUZZE AISHA BATALA**

**Ag. JUDGE.**

# **15/07/2025**

**Delivered Electronically via ECCMIS on the 15 th day of July**

**2025.**