Three Justices of the Court of Appeal led by Justice Cheborion Barishaki, Justice Asa Mugenyi and Justice Christopher Gashirabake have dismissed with costs the application filed by Ali Muwanga Kibirige the executor of the estate of the late tycoon Bulaimu Muwanga Kibirige(BMK) the proprietor of the BMK group of companies including hotel Africana
Muwanga through his lawyers led by Commercial law giant Derrick Bazzeketta rushed to the Court of Appeal seeking a declaration extending time to file his appeal that was challenging the decision of the Commercial Division of the High Court allowing Yako Bank Uganda Limited to auction part of his father’s estate to recover its money.
Muwanga told Court that in November of 2022, the Commercial Court entered a default judgement against his brother Haruna Muwanga Kalule who he accused of fraudulently transferring his father’s land title situated at LRV 4000 Folio 4 Plot 46 Mulamula Road and using it to secure a loan from the bank as security, money which he failed to pay.
He stated in his affidavit that after the bank secured a court order for attachment of the said property and auctioned it, he challenged the decision on grounds that the property at hand is part of his father’s estate and it was fraudulently transferred.
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When he lost the application, he instructed his lawyers to file the notice of appeal and they applied for leave to appeal against the decision of the court.
The application was dismissed.
He noted that his former lawyers of M/s Kirumira & Company Advocates didn’t inform or advise him of the intricacies of leave to appeal against the decision of the High Court and the time within which it had to be done.
He explained that he was very sure that after filing the notice to appeal everything was done.
However, Lilian Kabateera an officer of the bank also swore an affidavit challenging Muwanga’s evidence insisting that the application for extension of time which he filed was an abuse of court process, vexatious and frivolous. He pleaded to the justices to dismiss it with costs.
Her evidence was supported by the submissions of the bank’s lawyers led by Brian Rubihayo who confirmed to court that the properties which Muwanga wanted to recover have already been sold to another party when the bank was trying to recover its money.
Rubihayo further told court that Muwanga was lying to court insisting that the lawyers he calls his former lawyers are still his lawyers and they are representing him in another matter before the Family Division of the High Court.
The Justices agreed with Rubihayo stating that Muwanga is not a straight man citing his affidavit in support of his application where he states that after the dismissal of his application, he instructed his lawyers to file an appeal, which instructions he followed up diligently and confirmed that his lawyers had filed and served a notice of appeal and a letter requesting for the record of proceedings.
However, the same person stated that after filing the notice of appeal, he honestly believed that all the necessary steps had been taken by his lawyers in respect to his appeal and further in the some affidavit stated that his former lawyers did not inform or advise him on the details of leave to appeal and or the time within which that had to be done.
“We find this argument incompatible with truth. Diligent follow up of instructions to appeal cannot be done by a litigant who claims that he was neither informed nor advised on the “intricacies” of leave to appeal or the time within which that had to be done,” the justices said.
They added that, “Therefore, the averments in are totally incompatible and the two explanations cannot be pieced up together to constitute a true, coherent and chronological flow of events.”
The Justices declared Muwanga’s application guilty of dilatory conduct, inordinate delay coupled with an abuse of court process and declined to exercise their discretion to grant an extension of time.
