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Kemirembe v National Housing and Construction Company Limited (Civil Application 638 of 2022)

Court of Appeal · [2023] UGCA 278 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application before a single Justice of the Court of Appeal to cite the respondent for contempt of court for failing to comply with orders made in Civil Appeal No. 83 of 2010.
Decision
Application granted; respondent found in contempt and ordered to provide access within 90 days (with arrest of its Managing Director and Board Chairman on default), pay UGX 100,000,000 general damages and costs, with special damages referred to the lower court for strict proof.

Observed later treatment

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Holding

A single Justice of the Court of Appeal dismissed the respondent's preliminary objection that the court lacked jurisdiction, holding that because the court had itself made orders (reinstating the magistrate's order) it could entertain enforcement and contempt of those orders, and that under s.34 of the Civil Procedure Act execution questions are decided by the court that passed the decree. On the merits, applying the three-element test for civil contempt, the court found the respondent had actual knowledge of the order but, save for one letter to NEMA, made no genuine effort to comply and so intentionally disobeyed. The application succeeded: the respondent was found in contempt, ordered to provide access within 90 days, and to pay general damages and costs.

Outcome

Application granted; respondent found in contempt and ordered to provide access within 90 days (with arrest of its Managing Director and Board Chairman on default), pay UGX 100,000,000 general damages and costs, with special damages referred to the lower court for strict proof.

Facts

The applicant is the registered proprietor of land comprising six commercial houses and other commercial apartments under construction. Around 2008 the respondent constructed an adjacent housing estate (Sunset Apartments) and, in the process, blocked the only access road to the suit property. The applicant sued in the Chief Magistrate's Court at Nakawa (Misc. Cause 240 of 2008), which ordered the respondent to re-open the access road or provide an alternative; the High Court reversed that order on appeal, but the Court of Appeal (Civil Appeal No. 83 of 2010) set aside the High Court decision and ordered the respondent to re-open the access road or provide alternative motor access to the public way. The respondent, a party aware of the order, did not implement it. Apart from a single letter to NEMA seeking authorisation for an alternative route, no follow-up was made. The applicant claimed loss of rental revenue over many years.

Issues

  1. Whether the Court of Appeal had jurisdiction to entertain the contempt application, given the respondent's objection that questions of execution must be determined by the court executing the decree.
  2. Whether the respondent's failure to implement the order made in Civil Appeal No. 83 of 2010 amounted to contempt of court.
  3. What remedies, including damages, the applicant was entitled to.

Orders

  • The respondent is directed to provide access to the applicant by complying with the lower court's order within 90 days of this ruling.
  • On failure to comply and continuing in contempt of court orders, the Managing Director and Board Chairman of the respondent are to be arrested until access is provided.
  • General damages of UGX 100,000,000 are awarded to the applicant.
  • The matter is referred to the lower court to investigate the prayed-for special damages, which are to be strictly proved.
  • The respondent shall pay the applicant's costs here and in the lower court.

Rules and key headnotes

Civil Procedure — Execution of Decrees — Court enforcing its own orders
Under section 34 of the Civil Procedure Act, all questions relating to the execution, discharge or satisfaction of a decree are to be determined by the court executing the decree and not by a separate suit; where an appellate court has itself made orders, it has jurisdiction to entertain enforcement of and contempt proceedings concerning those orders.
Civil Procedure — Contempt of Court — Elements of civil contempt
Civil contempt consists of the intentional doing of an act prohibited by a court order; before a finding of civil contempt can be made three elements must be proved: the existence of a lawful order that is clear and unambiguous, actual knowledge of the order by the party alleged to have breached it, and intentional doing of the prohibited act or intentional failure to do the act the order compels.
Civil Procedure — Contempt of Court — Standard of proof
The standard of proof in contempt proceedings is higher than proof on a balance of probabilities and almost, but not exactly, beyond reasonable doubt.
Civil Procedure — Contempt of Court — Duty to obey orders
A party who knows of a court order, whether the order is null or valid, regular or irregular, cannot be permitted to disobey it for so long as it exists.

Legislation cited (7)

Cases cited (8)

  • Mugenyi and Company Advocates v National Insurance Corporation (Civil Appeal No. 13 of 1984) [1992-1993] HCB 82
  • Odongo Geoffrey & Ors v Atoke Francis (Civil Appeal No. 127 of 2015)
  • Sitenda Sebalu v The Secretary General of the East African Community (Reference No. 8 of 2012)
  • Francis Micah v Nuwa Walakira (Civil Appeal No. 24 of 1994)
  • Lukenge Hakeem v Hajati Ajiri Namagembe & Ors (Civil Application No. 290 of 2020)
  • Hadkinson v Hadkinson [1952] 2 All ER 567
  • Church v Cremer (1 Coop Temp Cott 342)
  • Republic v County Chief Finance Officer, Finance & Economic Planning Nairobi City County (Ex parte David Mugo Mwangi) [2018] eKLR

Full judgment

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

Kemirembe v National Housing and Construction Company Limited (Civil Application 638 of 2022) [2023] UGCA 278 (23 October 2023)
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.