[2023] UGHCFD 83

## **THE REPUBLIC OF UGANDA**

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

## **FAMILY DIVISION**

#### **MISCELLANEOUS APPLICATION NO. 0692 OF 2022**

#### **(All Arising out of Civil Suit No. 0429 of 2016)**

## **KATO JOSEPH SENTAMU:::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

- 1. **DDUMBA GEOFREY** - 2. **NAKASI IRENE** - 3. **MULOKWA DAVID:::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

Before: Lady Justice Ketrah Kitariisibwa Katunguka**.**

#### **Introduction:**

- **1.** This is an application seeking orders that the judgment in Civil Suit No. 429 of 2016 be arrested; the orders of this honourable court made on the 10th December, 2021 excluding the applicant Kato Joseph Sentamu from being part of the proceedings in CS No. 429 of 2016 be set aside; the Applicant be granted leave to rejoin and/ or present his defence; and that costs of this Application be in the cause; - **2.** The grounds of the Application are in the Notice of Motion and Affidavit in support deposed by Kato Joseph Sentamu (herein the Applicant) and briefly that; the Applicant learnt of the order excluding him from being part of the proceedings in CS. NO. 429 of 2016 by order of court read to him on the 30th day of June 2022 when he had come to attend court; court made the said orders on the ground that the applicant was not in court on the 10th day of December, 2021 and neither had he filed a response to the joint scheduling memorandum; the Applicant was prevented by sufficient cause from filing his trial bundle, witness statement and joint scheduling conference memorandum; - **3.** The applicant had instructed his lawyers Messrs Madibo Mafabi advocates and solicitors to prosecute his case but they instead filed the said documents outside court's given time; the mistake of Counsel should not be visited on the innocent litigant who has no control over the way how advocates conduct their work; it will be an injustice to the Applicant to be locked behind the curtain of justice on court's insistence on time frames which are only applicable to the applicant/defendant but inapplicable to the respondents/plaintiffs; all people are equal before the law and court ought to have extended the same sympathy to the Applicant the way it did to one of the Plaintiffs' witnesses who never purged his contempt but was allowed to

testify when his witness statement was also not on record within the time so ordered by court;

- **4.** The applicant will be highly prejudiced by excluding him from the proceedings yet his contempt had been purged by filing the said documents; the proceedings that gave rise to the exparte order were irregular, bad and barred in law; the applicant who filed M. A NO.0356 of 2019 for a D,N. A Test application; court refused to fix the same despite the Applicant's repeated demands to have the same fixed and instead heard the respondent's application; counsel's dilatory conduct and/ or negligence and / or sickness and /or inadvertences can't be imputed on the innocent litigant; - **5.** Disallowing the applicant's application will be sanctioning the Respondent's illegal plaint whose entire pleadings and proceedings are marred with conjecture and falsehoods; the applicant has a plausible defence and the evidence intended to be given will expose the respondents' fraud, conjecture, falsehoods and demonstrating that the respondents are not the deceased's siblings as alleged; it is just and reasonable for this court discretion and grant the orders sought; - **6.** This Miscellaneous application was filed on 26th July 2022 during court vacation; on 26/08/2022 it was brought to my attention and given a hearing date of 17/11/2022; on 17/11/2022 when it came up counsel Mafabi Godfrey appeared for the applicant while counsel Senfuka Robert appeared for the respondent; both the applicant and the respondents were in court; - **7.** Counsel for the respondent admitted having filed the affidavit in reply out of time; counsel for the applicant prayed that the counsel formally applies for leave; court directed that he makes a formal application for leave to file a reply together with submissions out of time, by 1/12/2022; counsel for the applicant was to file their response by 15/1/2023 and ruling was to be delivered by 15/03/2023; the application MA 1164/2022 for leave to file and serve out of time was filed on 1st December 2022 but it was never served on the respondent/applicant; - **8.** The record shows that on 30/6/2022, the judgment date of 20/12/2022 for Civil Suit No.429 of 2022 was given in the presence of the applicant; subsequently, the ruling date for the application for leave to file an affidavit out of time was fixed for 15/3/2023 in the presence of the applicant and his counsel, who well knew that the aforementioned ruling date fell after the judgment in the main suit had been delivered; none of them brought it to attention of court; - **9.** While disputes brought before court must be determined, courts have held that court orders should not be issued in vain; once there is no live dispute courts time should not be wasted in determining moot cases. (See;T*uryakira John Robert & Anor v Uganda Revenue Authority HC Misc Cause No. 166 of 2018*; In the case of **The Environment Action Network Ltd vs Joseph Eryau, Court of Appeal Civil Application No. 98 of 2005**, the Court of Appeal while relying on its earlier decision

i n **Uganda Corporation Creameries Ltd & Another vs Reamaton Ltd, Civil Reference No. 11 of 1999**, stated; *"It is a well-known principle of law that courts adjudicate on issues which actually exist between litigants and not academic ones".*

- *10.* Court in **Capital Shoppers Ltd and Others v. Uganda Revenue Authority [2021] UGHCCD 7** found that; *"The function of a Court of law is to decide an actual case, and to right actual wrongs, and not to exercise the mind by indulging in unrewarding academic casuistry or in pursuing the useless aim of jousting with windmills. Further, the court should not grant a relief or pass order or direction which is incapable of implementation. The orders sought by the applicants are overtaken by events and therefore moot since no good would be achieved if the orders are granted."* - **11.**Section 33 of the Judicature Act empowers the High Court" to *grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a case 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 those matters avoided".* - **12.**The record shows that court advised the applicant on 30th June 2022 to apply to set aside the exparte proceedings which relief is part of the prayers in this application; however, judgment was delivered on 4th January 2023; for whatever reason, court must resolve existing disputes and within the law; in my view this application for arrest of judgment and the application for leave to file a reply out of time, have been overtaken by events and have no hinge;

There is no order for costs.

It is so ordered.

Ketrah Kitariisibwa Katunguka Judge 22/03/2023

D e l i v e r e d b y e m a i l to:katojoseph349@gmail.com,gmdibo@gmail.com,skpartnersadvocates@gmail.com