Court name
Court of Appeal of Uganda
Case number
Civil Application 130 of 2012
Judgment date
31 July 2013

Asiimwe & 2 Ors v Kiyingi (Civil Application 130 of 2012) [2013] UGCA 10 (31 July 2013);

Cite this case
[2013] UGCA 10

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA (COA) AT

KAMPALA

CIVIL APPLICATION NUMBER 0130 OF 2012

1

 

 

. ASIIMWE DIANA JACKLINE }

2. HENRY MUGENYI

3. STEVEN SERWADDA

APPLICANTS

Vs.

DR AGGREY KIYINGI·

 

 

.·.·..·.·.·.·.·.·..·.·.·.·.·.·.·..·.·.·.·.·.·..·.·.·.·.·.·.·••·······RESPONDENT

BEFORE:

HON. MR. JUSTICE. KENNETH KAKURU, JA

Date: 31

 

 

st July 2013

RULING:

This is an appeal by way of reference from a decision of The learne

 

 

d

Assistan

 

 

t Registrar of this court to a single Justice of Appeal. There is no

i

 

 

ndication as under what law this appeal or reference has been brought. I

presume it was brought under Rule 110 of the Rules of this court.

The app

 

 

licants in this matter were all the material time represented by Mr.

Eric Muhwezi and Mr

 

 

. Latigo was for the respondent. Mr. Muhwezi

p

 

 

ractices in the name and style of MIS Muhanguzi, Muhwezi & Co.

1

Advocate

 

 

s whose address is NIC building 2nd floor9 (Annex) Pilkington

Road P.

 

 

O. Box 7456 Kampala.

At the he

 

 

aring of this application, Mr. Muhwezi was absent. However one of

his client

 

 

s, the 3rd applicant Mr. Steven Serwadda was present in court. Mr.

Serwadd

 

 

a informed court that his counsel Mr. Eric Muhwezi was

indispos

 

 

ed and applied for an adjournment on that account.

Court de

 

 

clined to grant the adjournment as no sufficient cause had been

shown.

Mr. Ser

 

 

wadda himself an advocate was asked to proceed with the

applicati

 

 

on as a party.

Mr

 

 

. Serwadda urgued grounds 1 & 2 of the Memorandum of Appeal

together

 

 

.

Basically

 

 

that the bill of costs was drawn and filed against 5 applicants

whereas

 

 

the case was at all material times against only 3 persons namely;

1. As

 

 

iimwe Diana Jackline

2. He

 

 

nry Mugenyi

3. St

 

 

even Serwadda

He urgu

 

 

ed that Steven Karangwa and the Commissioner for Land

Registrat

 

 

ion where not parties to the case and should not have been

included i

 

 

n the taxation proceedings.

On the

 

 

second ground, he argued that the respondent had committed

contemp

 

 

t of this court when they refused to obey the court order in

Miscell

 

 

aneous Application Number

135 of 2009

to deposit certificates of

2

title in co

 

 

urt but instead sold the two titles to avoid execution in High Court

Civil Su

 

 

it No.266

of 2009

from which the taxation proceedings on appeal

in this co

 

 

urt eventually arose.

At the h

 

 

earing of this application, court brought to the attention of Mr.

Serwadd

 

 

a the fact that the order of the Assistant Registrar of this court

which di

 

 

rected the respondent in this matter Dr. Aggrey Kiyingi to deposit

the said

 

 

land titles was signed on 23rd day of November 2009. The

applicati

 

 

on itself was heard on 20th October 2009.This was ascertained

from the r

 

 

ecord filed in this court by the applicants.

Court al

 

 

so brought to the attention of Mr. Serwadda the fact that his own

Record

 

 

of Reference at pages 37 and 40 contains copies of the said land

titles, tw

 

 

o of them. The record indicates that the said titles had been

transferr

 

 

ed from the names of Dr. Aggrey Kiyingi the respondent herein to

those of

 

 

one Mohammed Ssekatawa on 14th October 2009. Accordingly

there is n

 

 

o way Dr. Kiyingi could have deposited titles in court which were

no longer

 

 

his property at the time when the order was made.

Upon re

 

 

alizing the above, Mr. Serwadda withdrew ground 2 of the

Memora

 

 

ndum of Reference.

In reply

 

 

Mr. Latigo learned counsel for the respondent urgued that the

learned

 

 

Assistant Registrar correctly dismissed the preliminary objection

raised at

 

 

the taxation hearing. The objection that the proceedings were in

respect

 

 

of 5 applicants yet the parties to the case were only 3, he urgued

was ma

 

 

de without any basis. He contended that at all material times the

parties t

 

 

o the application and appeal were five and not three.

3

He produ

 

ced a notice of appeal in this matter to the Supreme Court that

was pre

 

pared, drawn and filed by MIS Muhanguzi, Muhwezi & Co.

Advocates

 

.

It indeed

 

indicates all the five applicants.

He also

 

brought to the attention of court the order of this court from which

the taxa

 

tion proceedings emanated. The order is in respect of five

applicant

 

s, this order was also drawn and filed by MIS Muhanguzi and

Muhwezi

 

Advocates of the same address. Both the order and the notice of

appeal a

 

bove mentioned were signed by Mr. Eric Muhwezi himself.

He praye

 

d for the dismissal of the application.

Since the

 

2nd ground of appeal was withdrawn, I will not dwell on It. suffice

to say

 

that had the advocate been more deligent he would have

ascertain

 

ed that Dr. Kiyingi had transferred the property to the third party

before th

 

e application was heard and before the order was made. This kind

of laxity

 

by an advocate is unacceptable at this court

Ground

 

one of memorandum of Reference as already noted is also

untenabl

 

e. Counsel for the applicant himself drew the order from which the

taxation

 

proceedings arose. The order named as applicants, 5 applicants

and not

 

3.

In his ow

 

n notice of appeal the advocate names five intended appellants.

I do not u

 

nderstand how the same person could then insist that the matter

was only

 

in respect of three applicants. The Assistant Registrar in this

matter w

 

as justified when she dismissed the preliminary objection.

4

I find this

 

 

application frivolous, a waste of court's time and abuse of court

process.

This is a

 

 

matter in which costs should have been awarded against the

Advocate

 

 

in person. I will not do so now.

This appli

 

 

cation must therefore be dismissed, and it's hereby dismissed

with costs.

HON. MR.JUSTICE KENNETH KAKURU

 

 

, JA

31

 

 

sT JULY 2013

5