The High Court has set strict timelines for parties to file their responses in a case where two Kampala traders’ associations are seeking an injunction against businessman Hamis Kiggundu, his company Kiham Enterprises Ltd the National Environment Management Authority (NEMA), and Kampala Capital City Authority (KCCA) over alleged illegal construction works on the Nakivubo Drainage Channel.
During a session presided over by the High Court Civil Division Registrar Simon Kintu Zirintusa, lawyers representing all parties appeared, although some had not yet filed their replies.
The applicants Kampala Arcaders Traders Association (KATA) and UNATA Traders Association Uganda Limited are challenging ongoing construction works that they say have caused flooding and destruction of traders’ merchandise in downtown Kampala.
Mr Joseph Luzige, representing the traders, informed court that although the respondents had been duly served several had not filed their responses within the expected time.
‘This application was supposed to come up for hearing. We served all the respondents and that is why they are in court. None has filed their reply, however, they are still within their timeline. The 3rd and 4th (Kiggundu and his company) have filed a Miscellaneous Application fixed for December 8 before a judge,’ Luzige said.
He asked court to set a hearing date, pending the respondents fulfilling their obligations.
NEMA’s lawyer Christopher Kayongo, together with KCCA lawyer Dennis Byaruhanga, requested seven more days to file their responses.
On behalf of Mr Kiggundu and Kiham Enterprises, Counsel Arnold Gimara confirmed they had filed both their response and an additional application which challenges the competency of the traders injunction request.
‘As highlighted by counsel, we have filed our response. The applicants were aware of the application which already has a hearing date of December 8. That application takes precedent,’ said Gimara.
He argued that their preliminary objection raises serious questions of law that ought to be heard first.
‘The application raises serious questions of law against the competency of this application and we pray that it is struck out. Court orders, Rule 91 and Rule 15(3) guide that where an objection of law is capable of disposing of the matter, the objection shall be heard first. We pray that the instant application for an injunction be given a mention date.’ Mr Gimara told court.
Mr Gimara insisted the applicants had been duly served and urged court not to proceed until the objections are considered by a judge.
In response, Mr Luzige opposed the request for additional time, insisting the respondents’ statutory 15 days to file a reply would lapse on Saturday.
‘If granted more time, it will be stretching the law. Counsel Gimara was saying you stay proceedings, but these are two stand-alone applications and you have powers to hear this one first,’ Mr Luzige submitted.
He added that while the law requires points of law to be addressed first, none had been raised in the matter currently before the registrar.
But Registrar Zirintusa granted the respondents seven days up to November 27 to file their replies, with rejoinders expected by December 1 and the matter was adjourned to December 11 for mention.
In a separate application filed before the high court judge, Mr Kiggundu and Kiham Enterprises asked court to dismiss the traders’ main suit, arguing that the traders associations lack the legal capacity to sue them.
‘The plaint in the suit be struck out for failure to disclose a reasonable cause of action. and the suit dismissed for being demonstrably frivolous, incurably defective, totally misconceived, incompetent and an abuse of court process,’ the application reads in part.
They argue that the traders’ claim is rooted in flooding caused by natural rainfall, which cannot constitute a valid legal action.
‘An act of nature cannot constitute a valid and tenable action against any person,’ the application states.
Kiggundu and his company further assert that the suit is speculative, particularly regarding allegations that they lacked approvals to redevelop the Nakivubo Channel. They maintain that valid approvals were in place and were on court record.
‘There is no live or triable dispute over the approval of the ongoing project,’ they contend.
This dismissal application will be heard by Justice Bernard Namanya on December 8, three days before the injunction application returns for mention.