Busenvi Enterprise Ltd v Makindye Ssabagabo Municipal Council

Evidentiary proof of agreement to arbitrate: Busenvi Enterprise Ltd v Makindye Ssabagabo Municipal Council, Civil Suit No 400/2019

In a suit involving a road construction, the Plaintiff sought against the Defendant remedies that included, among others, specific performance, damages, interest, and costs. When the suit came up for hearing, the Defendant raised a preliminary objection that the matter be referred to arbitration in light of the provisions of the General Conditions of Contract, and sections 5 and 9 of the Arbitration and Conciliation Act.

In a decision issued on July 1, 2022, the trial judge rejected the preliminary objection raised. Nambayo, J. ruled that evidentiary proof is necessary for a determination to refer the matter to arbitration, holding that section 5 of the Arbitration and Conciliation Act requires a party to “apply to court”. The evidentiary proof requires there be “a formal application” for a court to determine, as a matter of law, that the matter be referred to arbitration. A preliminary objection on a point of law will not suffice. The judge ordered the matter proceed for hearing and left it to the Defendant to file a formal application on referral to arbitration.

The ruling in the matter underscores the principle that there must be an application in terms of section 5 of the Act, which serves as a basis of a hearing conducted by a court to ascertain voidness, inoperativeness, and incapability of performance of an arbitration agreement, or the absence of an arbitrable dispute. A court must ascertain the prima facie existence of an arbitration agreement and arbitrable dispute. This requires evidence before the court.

Download this Legal Alert as a PDF file here


No information contained in this alert should be construed as legal advice from ALP East Africa or ALP Advocates or the individual authors, nor is it intended to be a substitute for legal counsel on any subject matter.

For additional information in relation to this alert, please contact the following:

  • Lastone Balyainho Gulume

         Practice Director/Head, Dispute Resolution Department


  • Henry Onoria

        Head, Law Consulting & Knowledge Department


Related Posts

Leave a Reply

Your email address will not be published. Required fields are marked *

Book Appointment

Email us for legal service

Mediation Services

The ALP Conflict Resolution Hub Mediation Service provides the most advanced global rules intended to assist parties and mediators to take maximum advantage of the flexible procedures available in mediation for the resolution of disputes quickly and economically.
The Mediation Service guides parties that opt for Dispute Management Clauses in their project contracts wherein the parties to the contract can jointly appoint a mediator to work together, in a more collaborative and mutually beneficial environment and oversee that their contracts proceed smoothly.

Arbitration Services

The ALP Conflict Resolution Hub Arbitration Service is based on the most efficient Arbitration Rules which help the parties and arbitrator to use the best available global practice for the resolution of domestic and international disputes quickly and economically by way of administered arbitration on global standards.
Additionally, the Arbitration Service provides for the appointment of emergency arbitrators, which allows the parties in need of emergency interim reliefs to make such applications even before the constitution of the regular arbitral tribunal.

Conciliation Services

The ALP Conflict Resolution Hub Conciliation Service provides an impartial, fast and effective conciliation operating to a uniformly high standard in both the public and private sector.
Participation in the Conciliation Service processes is voluntary, and so are the outcomes.Solutions are reached only by consensus whether by negotiation and agreements facilitated between the parties themselves or by the parties agreeing to settlement terms proposed by the Hub Conciliation Officer who treats as confidential all information received during the course of conciliation and the service is informal and non-legalistic in practice.

Ombudsman Services

The ALP Conflict Resolution Hub Ombudsman Service is a confidential, impartial and informal service that facilitates the resolution of disputes. A Hub Ombudsman helps parties analyze problems and assists in identifying options and can, only if requested, become involved in trying to resolve issues.
What’s more, the Hub Ombudsman Service alert managements to systemic trends and issues and makes recommendations for necessary changes in their fields.