Wakilii

Kesacon Services Limited v Stanbic Bank Limited (Miscellaneous Application 305 of 2024)

High Court · [2024] UGCOMMC 273 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of orders in earlier miscellaneous application pending determination of related civil suit
Decision
Application dismissed as res judicata and for contempt. Matter fixed for hearing on contempt sanctions.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application on two independent grounds. First, the application was res judicata as the Applicant was attempting to re-litigate issues already decided in HCMA 724/2023 where the court had considered and rejected the argument that pending suits should prevent eviction orders. Second, the Applicant was in contempt of court orders from HCMA 724/2023 and could not be granted audience until contempt was purged. The matter was set for hearing on sanctions for contempt.

Outcome

Application dismissed as res judicata and for contempt. Matter fixed for hearing on contempt sanctions.

Facts

Kesacon Services Limited mortgaged property described as Kibuga Block 38 Plot 537 to Stanbic Bank as security for a loan. After default, judgment was entered in HCCS 66/2012 in favour of Stanbic Bank for UGX 476,381,200. The parties agreed to sell the property to David Kageruka for UGX 560,000,000, with proceeds split between them. Kesacon refused to vacate after the sale. Stanbic Bank obtained eviction orders in HCMA 724/2023, with Kesacon given sixty days to give vacant possession. The sixty-day period expired, but Kesacon remained in possession and filed the present application seeking to stay execution of those eviction orders pending determination of a new civil suit challenging the sale. By the time this application was filed in February 2024, Kesacon had been in non-compliance for over four months beyond the sixty-day deadline.

Issues

  1. Whether the application is res judicata having regard to earlier proceedings in HCMA 724/2023.
  2. Whether the Applicant, having failed to comply with court orders and being in contempt, should be granted audience.
  3. Whether execution of orders in HCMA 724/2023 should be stayed pending determination of Civil Suit 1364/2024.

Orders

  • This application is res judicata and accordingly, the same is dismissed.
  • This matter is fixed for hearing on the issue of the sanction for contempt on 19th of August 2024 and a hearing notice in respect of the same shall be issued in ECCMIS.
  • The Applicant shall bear the costs of this application.

Rules and key headnotes

Res Judicata — Test for Application of Doctrine
The doctrine of res judicata bars a party from bringing before the court in another way and in the form of a new cause of action matters already put before a court of competent jurisdiction in earlier proceedings and adjudicated upon, including every point which belonged to the subject matter of litigation and which the parties exercising reasonable diligence might have brought forward at the time.
Res Judicata — Three-Part Test
To establish res judicata, three elements must be satisfied: there must be a former suit or issue decided by a competent court; the matter in dispute in the former suit must also be directly or substantially in dispute in the current suit; and the parties in both suits must be the same or parties claiming under them.
Contempt of Court — Right to Audience
As a general rule, the court will not hear an application for the benefit of a person guilty of civil contempt until they have purged themselves of that contempt, although the court retains discretion depending on the circumstances to allow audience where contempt is subject to separate court process not yet resolved.
Contempt of Court — Discretion to Deny Audience
While the right to fair hearing is sacrosanct, there may be instances where due to the risk of the rule of law being deliberately undermined, the right to be heard may be denied until there is full compliance with court orders, particularly in cases evincing headstrong contumaciousness proceeding from bold impunity, open defiance, or cynical disregard for the authority of the court.
Stay of Execution — Order 22 Rule 26 CPR — Applicability
Order 22 Rule 26 of the Civil Procedure Rules, which permits stay of execution of a decree pending determination of a second suit, applies only to decrees and not to other court orders such as interlocutory orders made in miscellaneous applications.

Legislation cited (7)

Cases cited (26)

  • Karia and another v Attorney General and others [2005] 1 EA 83
  • Boutique Shazim Limited v Norattam Bhatia and Another (Court of Appeal Civil Appeal No. 36 of 2007)
  • Onzia Elizabeth v Shaban Fadul and Another (High Court Civil Appeal No. 19 of 2013)
  • Bank of Rajasthan Limited v. VCK Shares & Stock Broking Services Limited CIVIL APPEAL NOS.8972-8973 OF 2014
  • Indian Bank vs Abs Marine Products Pvt. Ltd Appeal 10074-10075 of 2003
  • Male Mabirizi Kiwanuka v Attorney General (Court of Appeal Civil Appeal No. 549 of 2022)
  • Housing Finance Bank Ltd v Edward Musisi (Court of Appeal Civil Appeal No. 158 of 2020)
  • Kenya Union of Post Primary Teachers & 3 Others v Njeru Kanyamba (2018) eKLR
  • Rose Detho v. Ratilal Automobiles Ltd & 6 Others, CA No. 304 of 2006 (171/2006 UR)
  • FRED MATIANGI, The Cabinet Secretary, Ministry of Interim and Co-ordination of National Government -V- MIGUNA MIGUNA & 4 OTHERS CIVIL APPLICATION NO. NAI. 1 OF 2017 [2018] eKLR
  • A. B. & ANOTHER vs. R.B. 2016 eKLR
  • Trust Bank Limited v Shanzu Villas Limited (2004) 2 KLR 299
  • Nation Media Group v Child Welfare Society of Kenya [2021] Eklr
  • Kasturilal Laroya v Mityana Staple Cotton Co Ltd and Another (1958) E.A. 194
  • Aya Investments Limited v International Development Corporation Of South Africa (Miscellaneous Application No. 3063 of 2023)
  • Betty Kizito v Dickson Nsubuga and Others (Supreme Court Civil Appeal Nos. 25 and 26 of 2021)
  • Attorney General v Male Mabirizi (Miscellaneous Application No. 843 of 2023)
  • Dr Dani Joackin v Eng. Lodu Julius (Miscellaneous Application No. 610 of 2023)
  • Nelson Lukozi v Meera Investments and Others (Miscellaneous Application No. 1970 of 2023)
  • Beeline Travel Care and Another v Finance Trust Bank Limited (Miscellaneous Application No. 296 of 2023)
  • UMEME v Irene Nankabirwa (Miscellaneous Application No. 154 of 2021)
  • Peter Mulira v Mitchell Cotts (Miscellaneous Application No. 715 of 2009)
  • Rebecca Nabunya Iga v Senteza Kabali Bunya (Miscellaneous Application No. 948 of 2020)
  • Gids Consults Limited and Another v Naren Mehta (Miscellaneous Application No. 864 of 2022)
  • Saggu v Roadmaster Cycles Ltd [2002] 1 EA 258
  • Cwezi Properties v UDB (Miscellaneous Application No. 1315 of 2022)

Full judgment

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Kesacon Services Limited v Stanbic Bank Limited (Miscellaneous Application 305 of 2024) [2024] UGCommC 273 (23 July 2024)
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.