Kwesiga and 2 Others v Ssenyonga and 2 Others (Civil Application 43 of 2021)

Supreme Court · [2021] UGSC 72 · 2021 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application before a single Justice of the Supreme Court for further security for costs in a pending civil appeal

Decision

Application for further security for costs dismissed with costs; the pending appeal proceeds

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

Sitting as a single Justice, the Supreme Court dismissed an application for further security for costs under rules 2(2) and 101(3) of the Supreme Court Rules. The burden lay on the applicants to show cause for the order. The appeal was not moot: although the respondents had transferred the suit land to a third party, the matter raised live questions of fact and law and challenged awards of general damages and costs. The applicants' assertions that the respondents lacked assets and addresses within the jurisdiction were superficial and unsupported by evidence, whereas the respondents proved fixed places of abode and property in Uganda. The insufficiency-of-security claim was speculative. The application was dismissed with costs.

Facts

The respondents were ranchers who held a lease over Ranch No. 40 in Sembabule measuring about 1,228.8 hectares. In the 1990s the Government restructured all ranches, took away part of the land, and retained for the respondents a residue of 259 hectares (Ranch 40A, the suit land). When the respondents applied to title the residue, they discovered a parallel title for the same 259 hectares had been processed and transferred to the applicants. The respondents sued and succeeded at first instance, but the applicants prevailed in the Court of Appeal, prompting the respondents' pending appeal to the Supreme Court. The applicants then applied for further security for costs, contending that the respondents had transferred the suit property to a third party during the appeal, rendering it moot, and that the respondents had no known assets or addresses within the jurisdiction from which past and future costs could be realised.

Issues

Whether the applicants established a case justifying an order for further security for costs of the pending appeal.
Whether the pending appeal was moot following the respondents' transfer of the suit property to a third party.
What remedies, if any, were available to the applicants.

Orders

Application dismissed with costs in the cause.

Key headnotes

Civil Procedure — Security for Costs — Burden of Proof

On an application for further security for costs, the burden lies on the applicant to show cause why the court should grant the order.

Civil Procedure — Security for Costs — Respondent's Inability to Pay

An applicant's lack of knowledge of a respondent's assets does not amount to evidence of the respondent's inability to pay costs; while lack of assets is an important factor, it is not by itself sufficient to order security, particularly for persons not falling under the Companies Act.

Civil Procedure — Mootness of Appeal

An appeal is moot only where the decision will not have the effect of resolving some controversy practically affecting the parties; an appeal that raises live questions of fact and law and challenges awards of damages and costs is not rendered moot by the transfer of the suit property to a third party.

Civil Procedure — Security for Costs — Speculative Estimates

A claim that statutory security for costs is inadequate cannot succeed where it rests on assumptions and speculative estimates of costs likely to be awarded rather than on substantial evidence on which the court can base a decision.

Evidence — Burden of Proof — Section 101 Evidence Act

A party who desires the court to give judgment as to any legal right or liability dependent on the existence of facts must prove that those facts exist.

Legislation cited (7)

Supreme Court Rules r.2(2)
Supreme Court Rules r.101(3)
Supreme Court Rules r.19
Court of Appeal Rules r.6(2)
Supreme Court Rules r.6(2)
Evidence Act s.101
Companies Act s.404

Cases cited (9)

Goodman Agencies Ltd v Hasa Agencies (K) Ltd (Civil Reference No. 1 of 2011)
KCB Bank (U) Ltd v Formula Feeds Ltd and Others (Civil Application No. 38 of 2020)
Kakooza Jonathan and Another v Kasaala Co-operative Society Ltd (Civil Application No. 13 of 2011)
Bank of Uganda v Nsereko and Others (Civil Application No. 7 of 2002)
GM Combined (U) Ltd v AK Detergents (U) Ltd (Civil Appeal No. 34 of 1995)
Kyambogo University v Prof. Isaiah Ndiege (Court of Appeal Application No. 341 of 2013)
Joseph Borowski v Attorney General of Canada (1989) 1 SCR 342
Human Rights Network for Journalists and Another v Uganda Communications Commission and 6 Others (HCMC No. 219 of 2013)
Lindsey Parkinson Ltd v. Tiplan Ltd

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.