Kigongo and Another v Nantume (Civil Application 83 of 2003)
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Holding
The Court of Appeal granted an application under rule 5(2)(b) for a stay of execution of an ex parte High Court judgment pending appeal. Although the respondent's agent claimed execution had been completed, the court found it unclear whether execution had actually occurred, noted irregularities in the sale agreement annexed to the affidavit, observed the unexplained issue of two simultaneous warrants, and treated the respondent's and counsel's non-attendance despite service as possible loss of interest. In the interest of justice, the court stayed the judgment, decrees and all orders pending determination of the intended appeal, with costs to abide the result of the appeal.
Facts
The respondent sued her husband (the 1st applicant) and step-daughter (the 2nd applicant) in HCCS No. 654 of 2000 in the High Court at Kampala. The suit was decided in her favour ex parte. The applicants' applications to set aside the ex parte judgment and to stay execution were both dismissed. They then filed a notice of appeal and this application for stay of execution under rule 5(2)(b). The respondent and her counsel did not attend the hearing despite service, so it proceeded ex parte. An affidavit by the respondent's agent, a court bailiff, asserted execution had been carried out, but documents produced by the applicants' counsel showed the 1st applicant had been arrested and detained in civil prison, then released after the respondent failed to remit subsistence allowance, and the warrant of arrest was set aside. The court found it unclear whether execution had actually occurred and noted irregularities in the annexed sale agreement.
Issues
- Whether the applicants satisfied the conditions for an order staying execution of the judgment, decree and orders in HCCS No. 654 of 2000 pending the determination of the intended appeal.
Orders
- The judgment, decrees and all orders made in HCCS No. 654 of 2000 are stayed pending the determination of the intended appeal or further orders of the court.
- The costs will abide the result of the intended appeal.
Key headnotes
Legislation cited (1)
- Rules of the Court of Appeal, Directions 1996 r.5(2)(b)