Application for leave to appeal the decision of the high court dismissing the application for leave to appear and defend a summary suit

THE RUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISC. APPLICATION 294 OF 2014

(ARISING FROM MISC. APPLICATION 132 OF 2014)

(FROM CIVIL SUIT NO. 69 OF 2014)

NAKATO KYABANGI KATUSIIME …………………………..APPLICANT

VERSUS

KENROY INVESTMENT LTD ……………………………… RESPONDENT

BEFORE JUSTICE FLAVIA SENOGA ANGLIN

RULING

This application was made under S.98 C.P.A, 0.44 rule 1 (2) (3) and (4) and 0.52 rule 1 of the C.P.R.

The Applicant seeks leave of this court to appeal to the Court of Appeal against this court’s decision of 23.04.14.  The decision disallowed the Applicant’s application seeking unconditional leave to appear and defend Civil Suit 132/14. Summary judgment was entered against the Applicant in the sum of Ug. Shs. 103,350,000/-.

Costs of the application were also applied for.

The grounds for the application are set out in detail in the Notice of Motion, which is also supported by the affidavit of the Applicant.

There is an affidavit in reply sworn by the Managing Director of the Respondent Company, opposing the application.

When the application was called for hearing on 14.05.14, Counsel for the Respondents submitted that he would not oppose the application provided it is conditional upon the applicant depositing the decretal sum in court.

Counsel for the Applicant, however, insisted that the leave should not be conditional as the Applicant is only exercising her right and has strong grounds for the appeal; as indicated in Paragraph 5 of the supporting affidavit and Paragraph 4 of the affidavit in rejoinder.

Having heard the submissions of both Counsel, and perused the affidavit for and against the application, I find that am more persuaded by the affidavit of the Respondent.

While it is agreed that the Applicant is exercising her right; that right must be exercised taking into account the corresponding rights of the Respondent.

The application for leave to appeal is allowed on condition that the intending Appellant deposits the decretal sum in court within 2 weeks from the date of this ruling.  The reason being that,whichever party wins in the end should not suffer any undue extra hardship.

 See also S.33 of the Judicature Act which “empowers the first court in exercise of its jurisdiction to grant absolutely or on such terms and conditions as it may think 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 any of those matters avoided.”

Costs will abide the outcome of the appeal.

FLAVIA SENOGA ANGLIN

JUDGE

16.05.14