Kisegerwa Micheal and Kazibwe Haruna v Moses Kityo and Kibirige Charles (Civil Appeal No. 045 of 2022; Civil Suit No. 236 of 2018; Miscellaneous Application No. 429 of 2022) [2025]

Court of Appeal · a3e0d5b634ff4c24 Application Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Omnibus application for stay of execution and leave to adduce additional evidence pending appeal

Decision

Application partly allowed: stay of execution granted; leave to adduce additional evidence refused

The full judgment

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Holding

The Court of Appeal partly allowed an omnibus application for stay of execution and leave to adduce additional evidence pending appeal. Applying the Ssekikubo conditions, the court found the applicants had an arguable appeal, would suffer irreparable damage through eviction and demolition rendering the appeal nugatory, that the balance of convenience favoured them, and that there was no undue delay. Stay of execution was therefore granted. However, applying Ladd v Marshall principles, the court refused leave to adduce additional evidence because the Will and account statement were available at trial with reasonable diligence and would not influence the result. Costs were to abide the outcome of the appeal.

Facts

The applicants were defendants in Civil Suit No. 236 of 2018, in which judgment was delivered on 30 November 2021 by the High Court (Family Division) concerning an estate and a disputed Will of the late Yunia Nanfuka Birabwa. The trial court found the Will the applicants relied on to be forged. The applicants appealed (Civil Appeal No. 0045 of 2022) and sought stay of execution after the High Court dismissed a similar application on 11 March 2022. The respondents had issued a notice to show cause why execution should not issue and a notice of eviction and demolition. The applicants remained in occupation of the suit land, where they had homes and rental units. They also sought leave to adduce additional evidence comprising a fuller photocopy of the Will (which they alleged their former lawyers had improperly copied, omitting a witness) and an account statement evidencing occupation for six years before the deceased died.

Issues

Whether there are sufficient grounds for stay of execution in Civil Suit No. 236 of 2018 pending the determination of Civil Appeal No. 0045 of 2022.
Whether there is sufficient cause to warrant admission of additional evidence on appeal.

Orders

Stay of execution of the judgment, decree or orders in Civil Suit No. 236 of 2018 granted pending the determination of Civil Appeal No. 0045 of 2022.
Prayer for admission of additional evidence on appeal dismissed.
Costs of the application to abide the outcome of the appeal.

Key headnotes

Civil Procedure — Stay of Execution Pending Appeal — Conditions

An applicant seeking stay of execution pending appeal must establish that the appeal has a likelihood of success or a prima facie right of appeal, that irreparable damage will be suffered or the appeal rendered nugatory absent a stay, and (failing those) where the balance of convenience lies, and that the application was brought without unreasonable delay.

Civil Procedure — Stay of Execution — Likelihood of Success of Appeal

In assessing likelihood of success the court does not delve into the merits but considers whether the memorandum of appeal raises arguable questions of law or fact that are not a mere sham, supported by the impugned judgment and a draft memorandum of appeal.

Civil Procedure — Stay of Execution — Irreparable Damage and Nugatory Appeal

Where execution would lead to eviction and demolition of structures on the suit land, the appeal would be rendered nugatory and the resulting loss irreparable, since such irreversible acts cannot be atoned by damages; this justifies a stay to preserve the status quo.

Evidence — Additional Evidence on Appeal — Ladd v Marshall Conditions

An appellate court may admit additional evidence only in exceptional circumstances where the evidence could not have been obtained with reasonable diligence for trial, is relevant and credible, and would probably have an important influence on the result; evidence available to a party at trial will not be admitted on appeal.

Succession & Estates — Validity of Wills — Number of Attesting Witnesses

A Will remains valid where it is witnessed by at least two persons; the omission of one of three witnesses' names does not invalidate an otherwise duly attested Will.

Legislation cited (9)

Constitution of the Republic of Uganda 1995 Article 126(2)(e)
Civil Procedure Act Cap. 71 (now Cap. 282) s.96
Civil Procedure Act Cap. 71 (now Cap. 282) s.98
Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rule 2(2)
Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rule 6(2)
Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rule 30(1)
Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rule 42(1)
Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rule 43(1)
Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rule 44

Cases cited (14)

Hon. Theodore Ssekikubo and Others v Attorney General and Another (Constitutional Application No. 6 of 2013)
G. Afro v Uganda Breweries Ltd (Supreme Court Civil Application No. 12 of 2008)
China Henan International Cooperation Group Co. Ltd v Justus Kyabahwa (Civil Application No. 100 of 2021)
Junaco (T) Limited and 2 Others v DFCU Bank Ltd (Civil Application No. 145 of 2023)
Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
Batambuze Majid v Joyce Ataro (Civil Application No. 572 of 2024)
City Council of Kampala v Donozio Musisi Sekyaya (Civil Application No. 3 of 2000)
National Enterprise Corporation v Mukisa Foods (Miscellaneous Civil Application No. 7 of 1998)
Francis Hansio Micar v Nuwa Walakira (Supreme Court Civil Application No. 9 of 1990)
General Parts (U) Ltd v Kunnal Pradp Karia (Civil Application No. 266 of 2013)
Ladd v Marshall [1954] 1 WLR 1489
Karmali Tarmohamed and Another v T.H. Lakhani & Company [1958] EA 567
Hon. Anifa Bangirana Kawooya v National Council for Higher Education (Supreme Court Miscellaneous Application No. 8 of 2013)
Baguma Patrick v Sanyu Phiona (Civil Application No. 452 of 2023)

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