Aisha Kiwanuka v Micro Finance Centre Ltd and Another (Civil Application No. 169 of 2014)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court held that an appeal is a creature of statute and, although the Mortgage Act created no right of appeal, section 66 of the Civil Procedure Act permits an appeal as of right from a decree of the High Court. It agreed that under Rule 42(1) of the Court of Appeal Rules the injunction application should first have been made to the High Court, which has power to grant such injunctions under section 64 of the Civil Procedure Act and section 38(1) of the Judicature Act. Nevertheless, in the interests of justice and to avoid rendering the appeal nugatory, the Court granted a temporary injunction restraining sale of the mortgaged property, limited to one year.

Outcome

Temporary injunction granted restraining sale of the mortgaged property pending the appeal, limited to one year

Facts

Imam Kiwanuka (respondent no.2) is the registered proprietor of land and a house at Kawatule, Kyengera, where he lives with his spouse Aisha Kiwanuka (the applicant) and children. He mortgaged the land to Micro Finance Centre Ltd (respondent no.1) as part of a transaction under which a loan was granted to a third party. The third party defaulted, and respondent no.1 commenced steps to dispose of the property to recover the outstanding sums. The applicant commenced an action in the High Court seeking, among other things, a declaration relating to the mortgage. The court below found that the applicant was the wife of respondent no.2 and that respondent no.2 had not sought her consent before mortgaging the property. Respondent no.1 made clear it intended to sell the property as soon as possible. The applicant applied to the Court of Appeal for a temporary injunction to restrain the sale pending her appeal.

Issues

1. Whether there was a competent appeal before the Court of Appeal given the applicant's alleged lack of an automatic right of appeal.
2. Whether the application for a temporary injunction should first have been made to the High Court under Rule 42(1) of the Court of Appeal Rules.
3. Whether the applicant satisfied the conditions for the grant of a temporary injunction pending appeal.

Orders

• The preliminary objection was not upheld and the application was not dismissed.
• A temporary injunction issued restraining respondent no.1 from selling the property pending determination of the applicant's appeal.
• The injunction to have effect for only one year.

Rules and key headnotes

Legislation cited (6)

• Civil Procedure Act s.66
• Civil Procedure Act s.64
• Judicature Act s.38(1)
• Court of Appeal Rules r.42(1)
• Civil Procedure Rules O.44 r.1
• Mortgage Act

Cases cited (2)

• National Housing & Construction Corporation v Kampala District Land Board and Another (Civil Application No. 6 of 2002)
• Shashkani Patel v Akampurira Michael Court of Appeal (Civil ...)

Cases citing this judgment (2)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Kiwanuka v Micro Finance Centre Limited and Another (Civil Appeal 159 of 2014)
• Kiwanuka v Micro Finance Support Centre Ltd & Anor (Civil Application No. 256 of 2015.)

The original judgment as reported. Read the original PDF before relying on any passage.