Takiya Kaswahiri v Kajungu (Civil Miscellaneous Application 106 of 2015)

Court of Appeal · [2015] UGCA 2023 · 2015 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application for an interim order pending disposal of an application for leave to appeal to the Supreme Court

Decision

Application for interim order dismissed with costs to the respondent

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The applicant sought an interim order to restrain the respondent from developing the suit land pending an application for leave to appeal to the Supreme Court. The Court found that the applicant had filed the application for leave to appeal more than a year after the Court's judgment, with no explanation for the delay by either of his successive lawyers. While preserving the right of appeal is an end of justice the Court must enforce, a party seeking such preservation must not be guilty of dilatory conduct. Given the applicant's dilatory conduct and the respondent's entitlement to enjoy the fruits of the decree after litigation since 2007, the Court declined to grant the interim order and dismissed the application with costs.

Facts

The parties disputed land at Kashenyi, Kyera, Birere, Isingiro District. The dispute began in 2007 in the Magistrate Grade I Court Mbarara (Civil Suit No. 0352 of 2007), which found the applicant to be owner. On appeal, the High Court at Mbarara held the respondent was the owner. The applicant appealed to the Court of Appeal in Civil Appeal No. 85 of 2011. On 18 February 2014 the Court of Appeal partly dismissed the appeal but set aside the award for general damages and mesne profits. The applicant instructed Bwengye & Company Advocates to appeal to the Supreme Court, but they only filed a Notice of Appeal on 27 February 2014 and did not pursue it. The applicant then instructed Kamba Hassan, who filed an application for extension of time to seek leave to appeal on 8 April 2015, more than a year after the judgment. The applicant sought an interim order to restrain the respondent from disposing of the suit land pending disposal of the leave application.

Issues

Whether the applicant should be granted an interim order restraining the respondent from developing and interfering with the suit land pending disposal of the application for leave to appeal to the Supreme Court.

Orders

Application dismissed with costs to the respondent.

Key headnotes

Civil Procedure — Interim Orders — Effect of Dilatory Conduct on Preservation of Right of Appeal

While preserving the right of appeal is an end of justice the court must enforce, a party seeking an interim order to preserve that right must not be guilty of dilatory conduct in pursuing it; unexplained delay disentitles the party to such relief.

Civil Procedure — Enforcement of Decree — Successful Party's Entitlement to Fruits of Judgment

A party in whose favour a decree has been entered is entitled to enjoy the fruits of that decree, and an interim order restraining enjoyment will not be granted where the applicant's conduct in the proceedings has been dilatory.

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.