THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DIVISION)
MISCELLANEOUS APPLICATION NO. 01 OF 2025
(ARISING FROM CIVIL SUIT NO. 42 OF 2025)

FESTO KYOHEIRWE …………………………….……………..… APPLICANT

VERSUS
JOHN MAGOBA ………………………………………………… RESPONDENT

APPLICANT’S SUBMISSIONS FOR AN APPLICATION FOR A

TEMPORARY INJUNCTION

Much Obliged Your Honor, Namutosi Martha Mayeku appearing with Oloka David
for the Applicant,
Karungi Irene Kemigisa appearing with Kalungi Joel Kalule for the respondent.
If it may please you My Lord, we make these submissions in support of the
application for a temporary Injunction vide Miscellaneous Application No. 001 of
2025.
My Lord, this application is brought under Order 41 Rule 1 and Rule 9 of The Civil
Procedure Rules SI 71-1, Section 98 of the Civil Procedure Act Cap 282 and
Section 37 of the Judicature Act Cap 16.
Your Honor, the applicant is seeking for orders that;-
1. A temporary injunction doth issue restraining the Respondent or her agents,
servants and/ or employees or any person claiming interest under the Respondent
from constructing on the Applicant’s land comprised of Kyadondo Block 178
Plot 1466 land at Manyangwa until the disposal of the main suit.

2. An order restraining the Respondent from digging a foundation on the suit

land until the disposal of the main suit.

3. An order restraining the Respondent from pouring construction materials on

the suit land until the disposal of the main suit.
4. Costs of this application be granted to the Applicant.

My Lord, the application is supported by the affidavit of Festo Kyoheirwe, the

applicant and it discloses the following grounds.

Background of this Application.

On the 19th day of September 2007, the applicant purchased 2.5 acres of land to be
subdivided from Kyadondo Block 178 Plot 539 land at Manyangwa from Paul Francis
Sebwana at a cost of UGX 55,000,000 /= (Uganda Shillings Fifty -Five Million).
The Applicant attached a sales agreement to prove this fact and it is on court record as
Annexture A. Before the purchase, the Applicant made a search and found that the
land was free from any encumbrances. After the purchase, the said Paul Francis
Sebwana processed a subdivision and had the title comprised in Kyadondo Block 178
Plot 1466 transferred into the Applicants’ names. The Applicant attached a land title
and it is marked as Annexture “B”)

The Applicant has been in possession of the land until sometime in December when
he found the respondent trespassing on his land. The Applicant filed Civil Suit No. 42
of 2024 in this Honorable Court and the Applicant attached a copy of the pleadings
that include the Plaint and its accompaniments, marked as Annexture ‘’C’’ on court
record. The applicant was however shocked to find the respondent building a
foundation and bringing construction materials on the suit land, actions that are
tampering with the status quo, hence this application.

Your Honor, the issues for determination before this Honorable Court are;-

1. Whether the Application discloses grounds for the grant of a temporary

injunction?
2. What remedies are available to the parties?

My Lord, in prosecuting this application, the Applicant shall rely on the Civil
Procedure Act Cap 282, The Civil Procedure Rules SI 71-1, The Evidence Act Cap 8,
The Judicature Act Cap 16 and relevant case law.

ISSUE 1: Whether the Application discloses grounds for the grant of a

temporary injunction?
Your Honor, a temporary injunction is a provisional order made before the trial. In the
grant of a temporary injunction the court does not look to the legal rights of the parties
as such but rather preservation of the status quo until disposal of the main suit.
My Lord, the grounds for the grant of a temporary injunction were laid out in the case
of E.LT. Kiyimba Kaggwa V Hajji Abdul Nasser Katende [1985] HCB 43 to
include;-
1. That there is a prima facie case with a probability of success.
2. That the applicant shall suffer irreparable injury that cannot be atoned for by the
award of damages, incase the application is not granted.
3. The balance of convenience is in the applicants’ favor.
Your Honor, the Applicant shall prove each ground with evidence pursuant to Section
101 of the Evidence Act Cap 8.

Your Honor, starting with the first grounds, That there is a prima facie case with a
probability of success.
Your Honor,For there to exist a prima facie case with a probability of success, the
Court must be satisfied that the claim is not frivolous or vexatious. In the case of
Robert Kavuma Vs M/S Hotel International SCCA No.8 Of 1990, court stated that
the applicant is required at this stage of trial, to show only a prima facie case
with a probability of success. It is trite law that a prima facie case is judged based on
the evidence placed before the Court, by way of affidavit or otherwise, in the
application for the injunction. Such evidence must show that there exists a genuine
triable issue in the main suit pending between the parties. Your Lordship, I shall
proceed to prove the existence of a prima facie case with probability of success.

My Lord, the Applicant has adduced evidence in paragraph 2 and 4 of the affidavit in
support of the Application to show that on the 19th day of September 2007, he
purchased 2.5 acres of land to be subdivided from Kyadondo Block 178 Plot 539 land
at Manyangwa from Paul Francis Sebwana at a cost of UGX 55,000,000 /= (Uganda
Shillings Fifty -Five Million) and after the purchase, the said Paul Francis Sebwana
processed a subdivision and had the title comprised in Kyadondo Block 178 Plot 1466
transferred into my names.
My Lord, the Applicant has also adduced evidence in paragraphs 3 that before the
purchase of the said land, he made a search and found that the land was free from any
encumbrances. The Applicant has adduced evidence in paragraph 5 to show that he
took possession of the said land after purchase.

My Lord, The Applicant has adduced evidence in paragraph 10 that he fenced off the
said land with barbed wires but the Respondent has continued to trespass on it. The
Applicant has adduced evidence in paragraph 11 and 12 that the Respondent has this
morning started pouring construction materials on his land and further he has brought
several casual workers on site, who have started digging a foundation on my land.

My Lord, the respondent in reply to the application stated that he purchased the suit
land and he claimed to have a sales agreement to that effect. He further claims to be in
possession of the suit land.

My Lord, it is our submission on this ground that it is fully satisfied by the facts at
hand and as shown in the Affidavit in support of the application and the affidavit in
reply to the same that the Applicant has a prima facie case with a high likelihood of
success.
My Lord, the applicant has shown that there are legal questions to be tried and as such
satisfying the ground for the grant of a temporary injunction. We pray that court finds
that this requirement is fulfilled.

My Lord, proceeding to the next element that the actions of the respondent
amount to an irreparable damage that cannot be atoned for by the award of
damages.
My Lord, the applicant in this case, stands to suffer irreparable damage in the most
unlikely event that this application is not granted. Irreparable injury does not mean
that there must not be physical possibility of repairing the injury but means that the
injury must be a substantial or material one that cannot be adequately compensated
for in damages as stated in [Kiyimba Kaggwa Versus Hajji Abdul Nasser Katende
(Supra)]

My Lord, the applicant cannot be adequately compensated by way of damage as

evidenced in the affidavit in support of the application to the effect that the
construction on the suit land by the Respondent shall be injurious as it will change the
status quo.
If the injunction is not granted to maintain the status quo of the suit property, the
Respondent shall construct on the suit land before the determination of the suit on
merit. Once the status quo is damaged, the main suit shall be nugatory.It is the
Applicant’s submission that the Applicant will suffer irreparable injury if the
injunction is not granted.

Your Worship, without prejudice to the submissions made in respect to the first two
grounds herein above, it is trite law that if the Court is in doubt on any of the above
two grounds, it will decide the application on the balance of convenience. The term
balance of convenience literally means that if the risk of doing an injustice is going to
make the applicant suffer then probably the balance of convenience is favorable to
him/her and the Court would most likely be inclined to grant to him/her the
application for a temporary injunction as stated in the case of Gapco (U) Ltd V
Kaweesa & Anor HCMA 259 Of 2013.

"Balance of harms" refers to the threatened injury to the party seeking the Preliminary
Injunction as compared to the harm that the other party may suffer from the Injunction.
The Court will consider where the "balance of convenience" lies, that is, the
respective inconvenience or loss to each Party if the Order is granted or not. The
Court will consider all the circumstances of the case. This was stated in the case of
Legal Brains Trust V Attorney General HCMA No.638 Of 2014.

My Lord, refusal to grant the application would make the applicant suffer since the
applicant has already invested a lot of money in purchasing and fencing the said piece
of land.

My Lord, having established that the applicant’s claim against the respondent in the
main suit has a high probability of success, the actions of the respondent if not
stopped will cause irreparable injury, which will bring inconvenience to the applicant.

My Lord, on the other hand the respondent can stop the construction and suspend the
works until determination of the main suit. In this regard, the respondent shall not
suffer any injury or even be less inconvenienced.

My Lord, if this injunction is not granted, the Respondent will impliedly have a right
to construct on the suit land before the main suit is determined. He may even restrain
the Applicant from accessing the suit land, yet both have an interest in the suit land.

It is therefore our submission that the balance of convenience is in favor of the

applicant since he will suffer more injury that may include tampering with the status
quo of the land and render the main suit a nugatory.

WHAT IS THE STATUS QUO OF THE SUIT PROPERTY

My Lord,The status quo is that the Applicant is still in possession of the suit land but
the Respondent has started digging a foundation and bringing construction materials
on the said land.

The Court of Appeal in Godfrey Sekitoleko & Ors V Seezi Mutabaazi & Ors [2001 –
2005] HCB 80 cited with approval in the case of Danial Jakisa and 2 others vs
Kyambogo university Miscellaneous application No. 549 of 2013 made the position
clear by stating as follows;-

“The court has a duty to protect the interests of parties pending the disposal of the
substantive suit. The subject matter of a temporary injunction is the protection of
legal rights pending litigation ............”

My Lord, the applicant has submitted about the status quo to be protected as this will
help to resolve the issues in the main suit but in the unlikely event that the application
is denied, it will automatically render the main suit a moot.

ISSUE 2: What remedies are available to the parties?

On the strength of the evidence, the law and the submissions given above, we make
our prayers that this honorable court grants:-
1. A temporary injunction restraining the Respondent or his agents, servants,
employees or any person claiming interest under the Respondent from doing any
further activities on the land comprised in Kyadondo Block 178 Plot 1466 land at
Manyangwa until the disposal of the main suit.
2. An order restraining the Respondent from digging a foundation on the suit land
until the disposal of the main suit.
3. An order restraining the Respondent from pouring construction materials on
the suit land until the disposal of the main suit.
4. An order restraining the Respondent and his agents from tampering with the
status quo of the suit land until determination of the main suit.

5. Costs of this application be granted to the Applicant.

We so pray.

DATED at Kampala on this 14th day of January 2025.

martha&david
COUNSEL FOR THE APPLICANT

DRAWN AND FILED BY:

M/s Batte & Co. Advocates,
P. O Box 3762,
KAMPALA