[2025] UGHCCD 73

## **THE REPUBLIC OF UGANDA**

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

# **CIVIL DIVISION**

## **MISC. APPLICATION NO. OO81 OF 2025**

**ARISING FROM MISCELLANEOUS APPLICATION NO. I178 OF 2024**

#### **AND**

# **ARISING FROM MISCELLANEOUS CAUSE NO 228 OF 2024**

**I. THE UGANDA LAW SOCIETY**

# **2. THE PRESIDENT OF UGANDA LAW SOCIETY (ISAAC SSEMAKADDE)::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS**

# **VERSUS**

# **1. TONNY TUMUKUNDE**

**2. BYAMAZIIMA JOSHUA::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

# **BEFORE HON. JUSTICE BONNY ISAAC TEKO**

## **RULING**

This Application is brought under Order 44 Rules 1(2), (3), & (4), and Order 52 Rules (1), & (2) of the Civil Procedure Rules S. I 71-1, Section 33 of the Judicature Act Cap. 13, Section 98 of the Civil Procedure Act Cap. 282 seeking orders that:

17th June 2025

- 1. The Applicants s be granted leave to appeal against the ruling of in the **Miscellaneous Application No 1178 of 2024** delivered by **Hon Lady Justice Esta Nambayo** on 17th of January 2025 to the Court of Appeal. - 2. The proceedings in **Miscellaneous Cause No 228 of 2024** be stayed pending the hearing and disposal of this application and the intended appeal. - 3. Cost of this application abide the outcome of the intended appeal.

# **Background**

The Respondents filed MC No. 228 of 2024 for Judicial Review on the grounds that the president of the Uganda Law Society issued a directive titled **Executive Order RNB No. 1 of 2024** allegedly expelling the Attorney General and the Solicitor General and/or their representatives from the Uganda Law Society Council.

On the 13th November, 2024, the Applicants filed **M. C No. 1178 of 2024** seeking orders that the Attorney General be added as a necessary party to M. C No. 228 of 2024 which application was dismissed with costs hence this Application. The Applicants were dissatisfied with the said ruling as the Trial Judge disregarded or departed from a binding precedent of the Supreme Court ruling in **Departed Asians Property Custodian Board vs Jaffer Brothers Ltd Civil Appeal No 9 of 1998 (1999) UGSC 2** on the question of necessary parties.

## **The Grounds of the Application**

The grounds for this Application are contained in the Application and further expounded in the Affidavit in support deponed by **Isaac Kimaze Ssemakadde**, the 2nd Applicant, and also, as the president of the 1st Applicants but briefly are as follows:


- That there are serious questions of law and fact that merit consideration by the Court of Appeal of Uganda especially the fact that the trial judge declined to follow the test of addition of necessary parties as enunciated by the Supreme Court. - That is fair and just that the Court grants the leave to appeal and issue an order to stay the proceedings in MA 228 of 2024 pending the outcome of the intended appeal and that the Respondents will not be prejudiced if this application is granted. - The Applicants s have since filed a notice of appeal against the said ruling and requested for the proceedings.

# **Representation:**

Mr. **Bazira Anthony, from M/s Byenkya, Kihika & Co. Advocates** represented the 1st and 2nd Respondents. While the Applicants were represented by **Jude Byamukama**

# **Issues**

The **issues** before court for resolution are

- 1. Whether this application satisfies the parameters for grant of leave to appeal. - 2. Whether the application satisfies the requirements for grant of an order for stay of proceedings.


17th June 2025

## **Submissions by the parties**

Counsel for the Applicants averred that the right to appeal is a creature of Statute as it was enunciated in the case of **Shah –Vs- Attorney General (1971) E. A 50,** and where there is no right of appeal, a party must seek leave of court to do so.

**Order 44 rule 1 (1) of the Civil Procedure Rules, S. I 71-1**, *provides for orders where an appeal shall lie as of right. Rule 2 of* **the above Order** *provides that "an Appeal under these Rules shall not lie from any other order except with leave of the Court making the order or of the Court to which an appeal would lie if leave were given".*

*Rule 3* further *provides that applications for leave to appeal shall in the first instance be made to the Court making the sought order to be appealed from.*

There are requirements that a party intending to appeal must satisfy before filing an application.

Counsel for the Applicants cited the case of **Sango Bay Estates Ltd & Ors Vs Dresdner Bank A. G (1972) EA 17**, where court held that the *Applicants must prove the existence of prima facie grounds of appeal which merit serious consideration.*

Further, Counsel cited **Degeya Trading Stores (U) Ltd Vs Uganda Revenue Authority, Court of Appeal Civil Application No. 16 of 1996,** where the Court of Appeal held that; *"An Applicant seeking leave to appeal must show either that his intended appeal has reasonable chances of success or that he has arguable grounds of appeal and has not been guilty of dilatory conduct"*


Counsel for the Applicants averred that the law on leave to appeal is therefore firmly settled.

Counsel for the Applicants further argued that questions of law which the Applicants seek to canvass on appeal, are based on the draft memorandum of appeal and are;

- a) Whether the trial judge erred in law and fact when she failed to apply the test for necessary parties as enunciated by the Supreme Court of Uganda in **Civil Appeal No.9 of 1988, Departed Asians Custodian Board Vs Jaffer Brothers.** - b) Whether the trial Judge erred in law in holding that the Attorney General could not be a party because he was not involved in the decision-making process? - c) Whether the trial Judge erred in law and fact in holding that there was no basis for adding the Attorney General as a party to Miscellaneous Cause No. 228 of 2024? - d) Whether the trial Judge erred in law when she held that the Applicants could not file the captioned application prior to entering appearance in the main Cause?

These are weighty questions of law that merit consideration by the Court of Appeal.

17th June 2025

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The Trial Judge disregarded a binding Supreme Court precedent, which was cited to the court, on the test for necessary parties in a suit. It is therefore fitting that the Court of Appeal should reconsider the ruling of the Trial Judge on the question of whether the Attorney General is not a necessary party to the Judicial Review application. The said application's chief complaint is the alleged "expulsion" of the Attorney General from the 1st Applicants.

Counsel further averred that the Applicants' conduct was not dilatory as they acted swiftly to file their notice of appeal challenging the said ruling and applied for leave.

It is the practice that where leave to appeal an interlocutory ruling is granted, a stay of proceedings issues to prevent rendering such appeal nugatory. See the Court of Appeal ruling in **Election Petition Application No. 2 of 2017 Kato Lubwama Vs Habib Buwembo at page 33**.

In light of this, we pray that this court finds that this is a fit and proper case for grant of leave to appeal the ruling of the High Court since that ruling fundamentally affects progress of the Applicants' case in the main Judicial review.

Additionally, the clear disregard to follow a binding precedent of the Supreme Court on necessary parties merits reconsideration on appeal.

The Applicants' Counsel prayed that the proceedings in Miscellaneous Cause No. 228 of 2024 be STAYED pending the outcome of the intended Appeal to avoid rendering such appeal nugatory.


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## **The Respondents' Submissions**

The Respondent strongly opposed the application for leave to appeal and stay of proceedings of the decision of Hon. Justice Esta Nambayo in HCMA No. 1178 of 2024, which dismissed the Applicants application to add the Attorney General, as a necessary party in HCMC No. 288 of 2024.

The Respondents in summary pointed out that;

- *1) The application does not satisfy the parameters for the grant of an order for leave to appeal. Interlocutory orders in general.* - *2) The Orders were an exercise of discretion by the judge.* - *3) The Application is premature and based on speculative.* - *4) The application does not satisfy the parameters for the grant of an order for Stay of Proceedings.*

**The respondent submitted that** there is no automatic right of appeal from Interlocutory orders of court save for orders from Interlocutory decisions specified under Order 44 of the Civil Procedure Rules. The Respondent cited the case of **Olweny and Others versus Oyoo and Others (Civil Appeal 32 of 2018) [2020] UGHC 169, at Page 8,** where **Hon. Justice Mubiru** held that;

*''Save for interlocutory decisions specified under Order 44 of The Civil Procedure Rules, there is no right of appeal to this Court originating from interlocutory orders of a Magistrate's Court which orders are incidental to the suit but not resulting from the final determination of the suit itself. Save for interlocutory decisions specified under Order 44 of The Civil Procedure Rules by virtue of section 76 (1) (h) of The Civil Procedure Act which confers a right of appeal from orders made under rules from which an*


*appeal is expressly allowed by rules, appeals do not lie as of right from any other interlocutory orders.*

*The interlocutory appeal provisions under Order 44 of The Civil Procedure Rules were enacted precisely so that difficult legal issues of significant importance could receive appellate consideration before the conclusion of the trial. The regime for interlocutory appeals was not designed to cater for appeals against routine procedural and evidentiary rulings, not determinant of the rights of the parties, made in the ordinary course of a trial. Therefore, there is no right of appeal from an order granting an adjournment.*

*According to Order 44 rule 1 (2) of The Civil Procedure Rules, an appeal under The Civil Procedure Rules does not lie from any other order except with leave of the court making the order or of the court to which an appeal would lie if leave were given. Applications for leave to appeal should in the first instance be made to the court making the order sought to be appealed from. The requirement of leave is intended as a check to unnecessary or frivolous appeals.''*

Interlocutory Orders were defined in the case of **Kato Lubwama v Buwembo (Election Petition Application 2 of 2017) [2020] UGCA 103 (13 October 2020), at Page 9,** as follows;

*"Interlocutory" signifies something which is done between the commencement and the end of a suit or action which decides some point or matter, which however is not a final decision of the matter in issue. This Court considered whether such orders are appealable in Nelson Gawala Wambuzi vs. Kenneth Lubogo and the*


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*Returning Officer of Kampala & Margaret Zziwa v. Naava Nabagesera, cited above.''*

#### *"In Black's Law Dictionary 2nd Edition; it is stated there that;*

*"Interlocutory order is an order intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy."*

The Respondent contended that the orders sought to be appealed in Miscellaneous Application No. 1178 of 2024, *were made in exercise of discretion* and the said discretion was exercised judiciously hence the appeal has no likelihood of success.

The decision in **Departed Asians Property Custodian Board versus Jaffer Brothers Ltd [1999] 1. E. A 55**, the Attorney General and the DAPCB, consented to being parties following an application by M/s Jaffer Brothers Limited to add the Custodian Board as the second defendant and Attorney General as a third party. The Attorney General himself consented to being a party unlike in this case where the Applicants sought to add the Attorney General. By refusing to add the Attorney General, the trial judge properly exercised her discretion. The said Supreme Court decision is **not** binding.

Counsel for the Respondents submitted that on decisions made in exercise of discretion, the Court of Appeal in **Watoto Childcare Ministries vs. Dr. Fredrick Njuki & 3 Ors, Court of Appeal Misc. Application No. 221 and 135 of 2020 (Arising from Misc. Application No. 136 of 2020 and HCCS No. 249 of 2012), at page 19,** held as follows;

 *''The order which the Applicant seeks to appeal against was for leave to appeal to be granted. I therefore come to the conclusion that the intended appeal has no likelihood of success and the Applicant has failed to prove grounds for the grant of leave to appeal."*

*"On leave to appeal, in the case of Sango Bay Versus Dresdner Bank [1971] EA 17 being a decision of the East African Court of Appeal sitting at Kampala, it was held that an Applicant has to prove that there are grounds of appeal which merit serious judicial consideration and where the appeal is from an order which is discretionary a stronger case has to be made out."*

This was a pure exercise of discretion which requires a high standard to persuade this Court to grant leave to appeal."

It is settled law that the Appellate Court will only interfere with the exercise of that discretion in very exceptional circumstances, to prevent a manifest miscarriage of justice.

The Applicants have not demonstrated any exceptional circumstances to warrant the grant of this application for leave to appeal. Their prayer for leave to be granted is not premised on a point of law. We refer to the case of **Olweny and Ors versus Oyoo and Others (Civil Appeal 32 of 2018) [2020] UGHC 169, page 8,** where **Hon. Justice Mubiru** held that,

*''In any event, an order granting or rejecting an adjournment is a discretionary one and so an interlocutory appeal there from cannot succeed simply because the Appellate Court might have reached a different conclusion. The Appellate Court will only interfere with the exercise of that discretion in very exceptional circumstances, to*


*prevent a manifest miscarriage of justice. In cases where the question relates only to exercise of discretion* (not involving a point of law.

The Respondent contended that courts generally frown at appeals from interlocutory orders as this is likely to lead to a multiplicity of court proceedings which will delay hearing of the main case, in particular the hearing of Miscellaneous Cause No. 228 of 2024, for Judicial Review.

The reason for discouraging such appeals counsel submitted is because interlocutory applications are generally an exercise intended to help court to do house clearing. Allowing such appeals would be clogging the Court of Appeal with so many appeals. The Applicants s should have waited till disposal of the main cause for Judicial Review and therein, include grounds of appeal (or cross appeal) for the interlocutory application. The court is yet to pronounce itself on the main application for judicial review between the parties.

This is in tandem with the decision in **Watoto Childcare Ministries vs. Dr. Fredrick Njuki & 3 Others, Court of Appeal Misc. Application No. 221 and 135 of 2020 (Arising from Misc. Application No. 136 of 2020 and HCCS No. 249 of 2012), at page 13, 15,** where Court of Appeal held as follows**;**

*''In order to avoid multiplicity of appeals, parties ought to wait until the final decision of the court, if dissatisfied with the decision of a trial court on preliminary objections which do not in any way go to the jurisdiction of the High Court or any other trail court or tribunal."*


Counsel for the Respondents further contended that there's a strong likelihood that whoever shall be dissatisfied with the outcome of the main cause, shall appeal.

In the premises, it wouldn't be necessary to file separate appeals; one arising out of an interlocutory application and another, arising from the main cause. *''In Hannington Wasswa & others vs. Maria Ochola & 3 others, Supreme Court Civil Appeal No. 5 of 1995, it was held that it was not necessary to file separate appeals, one against interlocutory orders made in the court of hearing and another one against the final decision. The Supreme Court went on to observe that,*

*"To hold otherwise might lead to a multiplicity of appeals upon incidental orders made in the course of the hearing when such matters can more conveniently be considered in an appeal from the final decision."*

### **Analysis and Determination**

I have read the legal arguments and cases cited by both parties on the issue of whether the Applicants merit the grant of leave to appeal.

The law provides specific circumstances under which the appeals are a statutory right under order 44 of the CPR and where appeals must be by leave of Court. Under Order 44 rule 2 any other appeal under the rules must be by leave of court.

The conditions of leave to appeal are that the Applicant must articulate and demonstrate the chances of success of the appeal and the grounds must be such that the likelihood of their success is quite high. the *Applicants must prove the existence of prima facie grounds of appeal which merit serious consideration.*


The Applicants submitted that in **Degeya Trading Stores (U) Ltd Vs Uganda Revenue Authority, Court of Appeal Civil Application No. 16 of 1996,** the Court of Appeal held that; *"An Applicant seeking leave to appeal must show either that his intended appeal has reasonable chances of success or that he has arguable grounds of appeal and has not been guilty of dilatory conduct"*

Counsel for the Respondent argued mainly on the issue of appeal on an interlocutory issue and the thrust of the argument was that if court were to allow appeals on interlocutory matters there would be a multiplicity of suits thereby overloading the judicial system and courts. He argued that Courts have been reluctant to grant leave to appeal on interlocutory matters to avoid multiplicity of suits that will clog the judicial system.

The Respondent argues that the Applicants should abide the outcome of the Judicial Review so that they can appeal all issues at once. I find it strange for the Respondents to try to determine how the Applicants should conduct their case.

In adversarial litigation, each party decides how to prosecute their case and take advantage of all available avenues to articulate their side of the case including deciding at what stage to appeal if the appeal is permitted by law. The decision whether to appeal on an interlocutory or final ruling lies with the party dissatisfied with the ruling.

The appeal needs to demonstrate a chance of success and the party must promptly file a notice of appeal and furnish the grounds in support of appeal in a memorandum.


The respondent took quite a bit of time arguing that the decision rendered in MC 228 of 2024 which dismissed the application seeking to add the Attorney General as a necessary party was **discretionary** meaning that the Judge was exerting her own mind on the matter beyond what the law provided.

Discretion is a flexibility or latitude available to a judicial officer to propose remedies beyond what is specifically stipulated. Discretion is applied judiciously where there is limited coverage by legislation or precedent. Where legal provisions and procedures are available and sufficient, discretion should take a back seat.

The parties in Miscellaneous Application No 1178 of 2024 made legal submissions in support and opposition of adding the Attorney General as a necessary party to **MC No 228 of 2024.**

Each party argued their case and the learned Judge rendered a considered decision based on the strength of the arguments of the parties on issues of law. I don't agree fully that the learned judge exercised more discretion than the law in dismissing the application which sought to add the Attorney General to the Judicial Review Application.

I believe that the ruling by the learned Judge in **MC 228 of 224** was based on the law and the interpretation of the law under which the President of the Law Society purported through an Executive Order RNB No 1 of 2024 to oust the Attorney General and the Solicitor General from the Governing Council of the Uganda Law Society.


I am reasonably convinced that the ground of appeal by the Applicants that the learned Judge did not apply her mind to the Supreme Court decision in **Asians Property Custodian Board vs Jaffer Brothers Ltd Civil Appeal No 9 of 1998 (1999) UGSC 2** is a ground that could be argued with a fair amount of likelihood of success at the appellate court. The Supreme court stated in that case that:

*For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions involved in the suit one of the 2 things has to be shown; Either it has to be shown that the orders which the plaintiff seek in the suit would legally affect the interests of that person and that it is desirable for avoidance of multiplicity of suits to have such person joined so that he is bound by the decision of the court in that suit.*

I am persuaded that ground dealing with adding the Attorney General as a necessary has a chance of success at the appellate level since the court's ruling in the decision to expel the Attorney General and the Solicitor General from the Governing Council of the Uganda Law Society is inextricably yoked with the impugned Executive Order and many activities and occasions where the law anticipated the Attorney General to be present in the Uganda Law Society Governing Council to express and articulate the interests of the stakeholders it represents.

Therefore, any decision around that issue would be deemed to affect the Attorney General hence the need to add him as a necessary party to the proceedings involving resolution of that issue.

Even though Judicial Review doesn't interest itself with the merits but the process in decision making, there is an issue of **process** in the manner of expelling the Attorney General and Solicitor General from the Uganda Law Society .

Questions such as *Was it done rightly, legally, rationally and properly?*


Adding the Attorney General as a party would help to resolve the issues and give the Attorney General opportunity to directly respond to any matters arising therefrom. *(My considered view)*

#### **Issue 2**

*Whether the application satisfies the requirements for grant of an order for stay of proceedings*

# **Applicants' submission**

The applicants did not labor this issue extensively, they only prayed that court be pleased to stay the proceedings in Miscellaneous Cause No. 228 of 2024 pending the outcome of the intended Appeal to avoid rendering such appeal nugatory.

The Applicant argued that it is the practice that where leave to appeal an interlocutory ruling is granted, a stay of proceedings issues to prevent rendering such appeal nugatory. See the Court of Appeal ruling in **Election Petition Application No. 2 of 2017 Kato Lubwama Vs Habib Buwembo at page 33.**

### **Respondent's submission**

Respondent's Counsel argued that this application does not satisfy the high standard required to justify the issuance of any order **for Stay of Proceedings;** The **TEST** for Stay of Proceedings is *high* and *stringent* and should only be *granted in deserving cases* since it interferes with the right to an expeditious trial. The Applicants seek to interfere with the hearing of High Court Miscellaneous Cause No. 228 of 2024, which is likely to have a great impact on the progress of the trial/hearing as per **paragraph 13 and 14 of the Affidavit in reply.**


Respondent's Counsel cited the case **of Kenya Wildlife Service versus James Mutembui, Civil Appeal No. 40 of 2018, at page 2,** where court held that,

*Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent.*

Respondent's Counsel argued that **the** dismissal of HCMA No. 1178 of 2024, seeking to add the Attorney General as a necessary party does not constitute good ground for an order staying proceedings.

### **Analysis and Determination by Court.**

Several decided cases have ruled that stay of proceedings is a grave decision that must be taken only in very deserving cases because it disrupts the pursuit of justice and delays justice. However, it does not mean that the courts will always not grant stays of proceeding in deserving cases.

The applicant relied on the case of **Election Petition Application No. 2 of 2017 Kato Lubwama Vs Habib Buwembo** where court upheld the practice of granting a stay of proceedings where leave to appeal has been granted to support his prayer while counsel for the Respondent relied on the case **of Kenya Wildlife Service versus James Mutembui, Civil Appeal No. 40 of 2018, at page 2, where court stated that …..***the test for stay of proceeding is high and stringent and* can only be granted in deserving cases*(emphasis mine)*

A stay of proceedings preserves the status quo especially where an interlocutory matter needs to be resolved before the final issues are determined.

17th June 2025

Once it is established that the chances of success of the grounds of appeal are high, and leave to appeal is granted, then an order to stay proceedings follows as a matter of course.

# **Final Decision**

I find that the applicants have made out a flickering case for a likely chance of success of their grounds of appeal and I'm inclined to grant the applicants leave to appeal against the ruling in High Court Miscellaneous Application No. 1178 of 2024.

**LEAVE IS HEREBY GRANTED** to the applicants to file an appeal against the decision in High Court Miscellaneous Application No. 1178 of 2024.

The appeal should be filed promptly in any case not later than 14 days from date of this Order.

Having made that decision, it follows as a matter of course that the proceedings in **Miscellaneous Cause No. 228 of 2024 BE STAYED** pending the outcome of the appeal.

**I so order.**

**Bonny Isaac Teko**

**Judge**