Court name
High Court of Uganda
Judgment date
1 February 2009

Moses Semanda Kazibwe v James Senyondo Katongole (Miscellaneous Application-2005/272) [2009] UGHC 7 (01 February 2009);

Cite this case
[2009] UGHC 7

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

MISC. APPLICATION NO. 272 OF 2005

(Arising from Civil Suit No. 141 of 2003)




MOSES SEMANDA KAZIBWE ::::::::::::::::::: APPLICANT/DEFENDANT

VERSUS


JAMES SENYONDO KATONGOLE ::::::::::::: RESPONDENT/PLAINTIFF





BEFORE: HON. JUSTICE REMMY K. KASULE





RULING:



Regrettably, the Court file in this case i.e. 141 of 2003 was last before me on 22nd December, 2005, when, it was adjourned for a Ruling on 26.02.06. Soon thereafter however, I moved to Gulu, and the case inadvertently
remained un-attended to; as in the process of transfer to Gulu, the file somehow got misplaced.



This Ruling is in respect of a submission by Mr. Katabalwa, learned Counsel for the defendant that the Plaintiff’s suit be
dismissed under Order 43 Rule 2(1) of the Civil Procedure Rules, (old version) on the ground that the Defendant had failed to provide
security for costs in the terms ordered by the Deputy Registrar, High Court, Land Division, in Miscellaneous Application No.272 of
2005 on 06.10.05.



By way of back ground, the Plaintiff sued the defendant in the main suit in respect of the ownership of a piece of land comprised
in Busiro Block 266 Plot 186 situate at Kisimbiri, Busiro county, Wakiso District. Plaintiff claims that the suit land belongs to
him, while the Defendant on his part, claims that he owns the suit land, having acquired the same by purchase from one Christopher
Katongole, now deceased.



On 15.11.15 when the case came up for hearing, both Plaintiff and defendant consented to an order to amend their respective pleadings
and to file the same in court before 08.12.05 when the case was fixed for mention. Before the said mention date was reached, the
Registrar Land Division, His Worship W.M. Musene, ordered on 06.10.05 the plaintiff to deposit in Court Shs.8,000,000/= security
for costs within a period of 60 days from the date of the order.



Court has studied the proceedings relating as to how the order for security for costs came to be made by the Registrar, Land Division,
when the hearing of the case was already before this Court. Whether or not the Registrar, Land Division, had jurisdiction to issue
the order of security for costs, given the stage the case had reached before this Court, is a matter to be decided upon by the Court
that will entertain the appeal against that order. This appeal is Land Division Miscellaneous Appeal No. 4 of 2005.



In view of the fact that an appeal is still pending in this Court against the decision of the Registrar, Land Division, dated 06.10.05,
this Court declines to dismiss H.C.C.S No.141 of 2003 on the ground that the Plaintiff has failed to provide security for costs.
Instead this Court directs that the file of the suit and that of the appeal against the Registrar’s order for security for
costs be placed before the Land Division of the High Court with a view to a quick disposal of the appeal. It is so ordered and directed.



Given the fact that the appeal against the Registrar’s order i.e. Miscellaneous Appeal No.4 of 2005, is still pending in this
Court and the main suit too is not yet disposed of, it is ordered that each party bears the costs of these proceedings as relate
to matters the subject of this Ruling.





Remmy K. Kasule

Judge

2
nd February 2009