Wakilii

Ladha Kassam and Company Limited and Others v Nalongo and 2 Others (Miscellaneous Application No. 1727 of 2022)

High Court · [2023] UGHCLD 98 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out plaint arising from Civil Suit No. 1088 of 2021
Decision
Application dismissed; parties directed to focus on prosecuting the main suit to its logical conclusion

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application as an abuse of court process. The court held that the preliminary objections raised by the applicants had already been determined in prior applications (Miscellaneous Application No. 2202 of 2021 and No. 1040 of 2022). The court found that re-litigating settled issues without challenging the earlier rulings constituted malicious abuse of court process. The court declined to condemn counsel to costs personally only because the respondents had not specifically raised this relief, but warned counsel to desist from abusing court process.

Outcome

Application dismissed; parties directed to focus on prosecuting the main suit to its logical conclusion

Facts

The applicants brought an application to strike out Civil Suit No. 1088 of 2021 on grounds that it lacked a cause of action, was time-barred, offended the delegatus principle, and contravened the Succession Act. The respondents, suing as administrators of the estate of the late Festo Banja through their attorney Medard Kiconco, opposed the application on the ground that identical preliminary objections had been raised and determined in Miscellaneous Application No. 2202 of 2021. In that earlier application for a temporary injunction, the court had ruled that administrators could lawfully grant powers of attorney under Order 3 rule 2 of the Civil Procedure Rules, that the suit was filed within the limitation period, and that a cause of action existed based on allegations of fraudulent conversion and subdivision of estate land. The applicants did not appeal or otherwise challenge that ruling but re-raised the same objections in the present application.

Issues

  1. Whether the application constitutes an abuse of court process by re-litigating preliminary objections previously determined by the court.
  2. Whether the head suit lacks a cause of action against the applicants.
  3. Whether the head suit is barred by the law of limitation.
  4. Whether the head suit offends the principle of delegatus non potest delegare.
  5. Whether the head suit contravenes the mandatory provisions of the Succession Act.

Orders

  • Application dismissed for abuse of court process.
  • No order as to costs, as the fault lies with counsel rather than the applicants themselves.

Rules and key headnotes

Abuse of Process — Re-litigation of Determined Issues
A malicious abuse of court process occurs when a party raises questions for determination well aware that such issues have previously been directly or substantially determined by the court, especially where no appeal or challenge to the earlier determination has been filed.
Inherent Powers of Court — Prevention of Abuse of Process
Section 98 of the Civil Procedure Act vests the court with inherent power to curtail abuse of court process, and section 33 of the Judicature Act empowers the court to avoid multiplicity of suits in the administration of justice.
Powers of Administrators — Authority to Grant Powers of Attorney
Administrators of an estate have authority under Order 3 rule 2 of the Civil Procedure Rules to grant powers of attorney to prosecute court matters relating to the estate; the rationale of section 204 of the Succession Act is to shield estates from persons not clothed with legal power but does not preclude duly authorized attorneys.
Cause of Action — Test for Existence
A cause of action is disclosed when the plaint shows that the plaintiff had a right, that right was violated resulting in damage, and the defendant is liable; the question must be determined upon perusal of the plaint alone together with anything attached so as to form part of it.
Costs Against Counsel — Requirement of Hearing
Although a court may condemn counsel to pay costs personally where counsel has abused court process, justice requires that counsel should not be so condemned without being heard on the issue.

Legislation cited (12)

Cases cited (9)

  • Cooke vs Gull LR I E.P 116
  • Read v Brown 22 QBD P.31
  • Tororo Cement Co Ltd v Frokina International Limited (Supreme Court Civil Appeal No. 2 of 2001)
  • Kebirungi v Road Trainers Ltd & 2 others [2008] HCB 72
  • Kapeka Coffee Works Ltd v NPART (Court of Appeal Civil Appeal No. 3 of 2000)
  • Attorney General v James Mark Kamoga and Another (Supreme Court Civil Appeal No. 8 of 2004)
  • Kamurasi Charles v Accord Properties Ltd and Another (Supreme Court Civil Appeal No. 3 of 1996)
  • Abraham v. Justin, [1963] 2 ALL E.R 402
  • J.E, Kohli and others v. Bachulal Popallal [1964] E.A 219

Full judgment

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

Ladha_Kassam_and_Company_Limited_and_Others_v_Nalongo_and_2_Others_(Miscellaneous_Application_No._1727_of_2022)_[2023]_UGHCLD_98_(14_February_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.