THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO. 0764 OF 2020
ARISING FROM CIVIL SUIT 316 OF 2020
ENG. ANDREW KITAKA------------------------------------APPLICANT
Before: Hon. Lady Justice Olive Kazaarwe Mukwaya
This application is brought under O.6 R 30 and O. 52 R. 1, 2, 3 of the Civil Procedure Rules SI.71-1 & section 98 of the Civil Procedure Act Cap 71 seeking orders that;
- HCCS No. 316 of 2020 Takaya Frank v Eng. Andrew Kitaka pending before this court be dismissed for being frivolous, vexatious and an abuse of court process.
- Costs of this application be provided for.
Grounds of the application
- On the 13th March 2017, the applicant instituted Civil suit no. 13 of 2017 in the Chief Magistrate’s court of Uganda at Mengo against the Respondent for trespass.
- The subject matter in the said suit is exactly the same as the matter before this court.
- Since there is a matter already pending before the Chief Magistrate’s court with the same parties and the same subject matter, this suit is frivolous, vexatious, an abuse of court process and ought to be dismissed.
The Applicant swore an affidavit in support of the application and attached, annexures, ‘A’ and ‘B’; copies of the plaint and written statement of defence under Civil Suit No.13 of 2017, pending before the Chief Magistrate’s court and annexures, ‘C’ and ‘D’, copies of the plaint and written statement of defence under HCCS No. 316 of 2020 now pending before this court.
In his affidavit in reply, the Respondent averred the subject matter in the Chief Magistrate’s court is different from the subject matter in the suit pending before this court. The land in dispute before the Magistrate’s court is the Applicant’s land comprised in Kibuga Block 12 Plot 356 which shares a boundary with the Respondent’s land comprised in Block 12 Plot 1675. On the other hand, the subject matter in the suit pending before this court is the Respondent’s land comprised in Block 12 Plot 1646 and Plot 1645 which the Applicant recently trespassed on.
Further, in paragraph 8, the Respondent states that the Applicant’s counter claim in HCCS No.316 of 2020 should be dismissed with costs since the issues raised in the counter claim are pending determination in the Magistrate’s court.
Counsel for the Applicant made brief submissions to this court. He stated that the reference to Plot 1675 in the Plaint before the Magistrate’s court was a typing error and the correct number is Plot 1645, the same subject matter in issue before this court.
I gave Counsel for the Respondent an opportunity to make brief submissions in reply and he failed to meet the time lines set by court. This ruling therefore based on this court’s perusal of the pleadings in the two civil suits and Counsels’ submissions made on the 8th October 2020.
Section 6 of the Civil Procedure Act Cap 71 provides as follows;
‘No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly or substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where that suit or proceeding is pending in the same or any other court having jurisdiction in Uganda to grant the relief claimed.’
A perusal of the plaints and WSDs in the two suits before me indicates that while the subject matter is substantially the same, and the parties are the same, the Magistrate’s court, where the suit was previously instituted, and is currently pending, has no jurisdiction to grant the reliefs claimed by both parties in the suit before this court and the counter claim thereunder.
It follows therefore, that the suit before this court does not offend the provisions of section 6 of the Civil Procedure Act. Be that as it may, the issues for determination before the Magistrate’s court are significantly related to the issues in the suit pending in HCCS 316 of 2020. The appropriate remedy therefore is for this suit to be stayed pending the determination of Civil suit 13 of 2017.
In the alternative, if the parties are desirous of having the issues raised in HCCS 316 of 2020 resolved as a matter of priority, the appropriate steps should be taken to discontinue the proceedings in the lower court, since it has become apparent that the remedies the parties seek are beyond the jurisdiction of the Magistrate’s court. This court would then have no impediment to having the matter heard.
The application partially succeeds and I order as follows;
- HCCS 316 of 2020 is stayed pending the determination/conclusion of Civil suit 13 of 2017.
- Each party to bear its own costs.
Olive Kazaarwe Mukwaya
29th October 2020
Delivered by email to: Mr. Mutumba Fred- Counsel for the Applicant.
Mr. Ssozi Sharif- Counsel for the Respondent.