Wakilii

Malinga & 2 Ors v Akol (Misc. Application No. 203 of 2015)

Court of Appeal · [2016] UGCA 49 · 2016 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for stay of execution pending hearing of a civil appeal
Decision
Stay of execution granted pending disposal of the appeal

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Holding

The Court of Appeal granted a stay of execution of the High Court orders pending hearing of the applicants' appeal. Applying the established principles for stay of execution, the Court found that the appeal raised triable issues with a prima facie likelihood of success, that the application had been brought without unreasonable delay, and that the applicants were in possession of the disputed customary land which they used for cultivation and as burial grounds. Because a prima facie case and possession were established, it was unnecessary to consider the balance of convenience. The Court ordered a stay until disposal of the pending appeal, with costs to abide the result of the appeal.

Facts

The dispute concerned ownership of customary land in Kachumbala sub-county, Bukedea District, allegedly sold secretly by the respondent's father to the applicants in 2001. Earlier litigation produced a Magistrate's decision, a Chief Magistrate's appeal, and a High Court revision by Justice Musota, which quashed irregular variation of orders but maintained an order granting the applicants 13 acres. In a separate suit the respondent claimed encroachment, lost, and appealed in Civil Appeal No. 22 of 2010, where the judge held the parties bound by earlier Chief Magistrate and revisional orders. The applicants filed Civil Appeal No. 43 of 2011 and sought a stay of execution, the High Court having refused one. The applicants had been served with an execution notice. They were in possession of the land, using it for cultivation and as burial grounds. The respondent did not file a reply or appear.

Issues

  1. Whether the applicants satisfied the conditions for the grant of a stay of execution pending the hearing of their appeal.

Orders

  • A stay of execution is granted staying the orders in High Court Civil Appeal No. 22 of 2010 until disposal of the appeal pending before this Court.
  • Costs of this application shall abide the result of the appeal.
  • Misc. Application No. 204 of 2015 (interim stay) is disposed of by this determination.

Key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant Pending Appeal
A stay of execution pending appeal may be granted where the applicant shows a likelihood of success in the appeal, a danger of irreparable harm if the order is not granted, that the balance of convenience favours the applicant, and that the application was made without unreasonable delay.
Civil Procedure — Stay of Execution — Prima Facie Case and Possession Dispense with Balance of Convenience
Where the court is satisfied that there is a prima facie case with triable issues in the appeal and that the applicant is in possession of the disputed property, it is unnecessary to consider the balance of convenience before granting a stay of execution.
Civil Procedure — Stay of Execution — Appeal Not to Be Rendered Nugatory
Where a right of appeal exists, the court ought to exercise its discretion so as not to prevent a successful appeal from being rendered nugatory, particularly where the applicant is in possession and uses the property for livelihood.

Legislation cited (5)

  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 2(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 43(1)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 6(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 56(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 76

Cases cited (5)

  • Hwang Sung Industries Ltd v Tajdin Hussein and Others (Civil Application No. 19 of 2008)
  • Davis Wesley Tusingwire v Attorney General (Constitutional Application No. 1 of 2014)
  • Lawrence Musiitwa Kyazze v Busingye (Civil Application No. 18 of 1990)
  • National Enterprise Corporation v Mukisa Foods Ltd (Misc. Civil Application No. 7 of 1998)
  • American Cyanamid Co v Ethicon Ltd [1975] AC 396
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.