[2023] UGHCLD 79
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...
Source-derived case information.
- Citation
- [2023] UGHCLD 79
- Parties
- Applicant: Kasingirwa Scovia; Applicant: Nshekanabo Anastanzia; Respondent: Elizabeth Kabera
- Court
- HC: Land Division (Uganda)
- Jurisdiction
- Uganda
- Case Number
- Miscellaneous Application No. 1565 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Dismiss or Stay Civil Suit
- Outcome
- application dismissed
- Judges
- Kazaarwe, J
- Legal Topics
- Res Judicata, Stay of Proceedings, Dismissal of Suit, Pending Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kasingirwa Scovia
Applicant
Nshekanabo Anastanzia
Applicant
Elizabeth Kabera
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Dismiss or Stay Civil Suit
Legal Issues
- 1 Whether Civil Suit No. 514 of 2017 is barred by law as res judicata.
- 2 Whether Civil Suit No. 514 of 2017 should be stayed pending determination of Civil Appeal No. 11 of 2021.
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.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
# **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.**