Wakilii

Ssentongo v Kagimu (Misc. Application No. 122 of 2019)

Court of Appeal · [2019] UGCA 2076 · 2019 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for an interim order to stay execution pending disposal of a substantive application to stay execution
Decision
Interim order of stay of execution granted pending disposal of the substantive stay application or the appeal

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Holding

The Court of Appeal, sitting through a single Justice, granted an interim order staying execution pending disposal of the applicant's substantive stay application or his second appeal. The Court restated the established requirements for an interim order: existence of a pending substantive application for stay, a serious threat of execution before its determination, and a competent notice of appeal. The applicant had lodged a notice of appeal, had a pending substantive stay application and a pending second appeal, and faced a real threat of arrest and committal to civil prison over unpaid taxed costs. The Court also held that counsel on record cannot properly reject service of court process, and proceeded in the respondent's absence.

Facts

The applicant, as plaintiff, sued the respondent in Masaka Chief Magistrate's Court (Civil Suit No. 68 of 2010) for vacant possession, a permanent injunction and general damages for trespass concerning rooms of a house at Nakayiba-Nyendo, Masaka. The Grade I Magistrate dismissed the suit, finding the applicant was a kibanja owner and the respondent the landlord already in possession. The High Court at Masaka dismissed the applicant's appeal (Civil Appeal No. 35 of 2016). The applicant then lodged a second appeal to the Court of Appeal (Civil Appeal No. 277 of 2017). The respondent's bills of costs were taxed at shs. 4,153,000 (Magistrate's Court) and shs. 3,771,500 (High Court appeal). Execution proceedings followed, including the applicant's arrest and threatened committal to civil prison for non-payment. An earlier High Court interim stay lapsed when the substantive High Court stay application was dismissed. The applicant filed a substantive stay application (No. 121 of 2019) and this interim application (No. 122 of 2019) in the Court of Appeal, facing further summonses to show cause why execution should not issue.

Issues

  1. Whether the applicant satisfied the conditions for the grant of an interim order to stay execution pending disposal of the substantive application to stay execution.

Orders

  • Application allowed and an interim order issued.
  • Execution of the decree of the High Court, Masaka in Civil Appeal No. 35 of 2016 and of the Masaka Chief Magistrate's Grade I Court Judgment/Decree in Civil Suit No. 68 of 2010 is stayed pending disposal of substantive application for stay No. 121 of 2019 or final disposal of Civil Appeal No. 277 of 2017, whichever is earlier.
  • Recovery of taxed costs from the applicant is also stayed on the same terms.
  • The Civil Registry and all Counsel are called upon to have the substantive stay application No. 121 of 2019 and Appeal No. 277 of 2017 fixed for hearing at the earliest possible.
  • Costs of these proceedings to abide the outcome of substantive application No. 121 of 2019 or Civil Appeal No. 277 of 2017, whichever is disposed of earlier.

Key headnotes

Civil Procedure — Interim Orders — Nature and Purpose of an Interim Stay of Execution
An interim order is a stop-gap measure operative only for a short period until the substantive application to stay execution is determined; it is granted to preserve the status quo and prevent the substantive application from being rendered nugatory, and is granted pending disposal of the substantive application rather than the appeal.
Civil Procedure — Interim Orders — Conditions for Grant
A court determining an application for an interim order of stay must consider whether there is a substantive application pending, whether there is a serious threat of execution or other threatening act before determination of the substantive application, and whether a notice of appeal has been filed.
Civil Procedure — Interim Orders — Judicial Discretion under Rule 2(2)
Under Rule 2(2) of the Judicature (Court of Appeal Rules) Directions the court exercises wide discretion to make such orders as may be necessary to achieve the ends of justice, including considering whether the applicant has a genuine right of appeal, is guilty of dilatory conduct, or is using the application merely to cause delay to the prejudice of the opposite party.
Civil Procedure — Service of Process — Duty of Counsel on Record
Counsel on record as representing a party has a duty to receive and act on court process served on them; it is unacceptable for such counsel to reject, or instruct staff to reject, court process, and the proper course is to appear and communicate any objection to the court rather than refuse service.

Legislation cited (9)

  • Judicature Act s.33
  • Civil Procedure Act s.98
  • Judicature (Court of Appeal Rules) Directions Rule 2(2)
  • Judicature (Court of Appeal Rules) Directions Rule 6(2)
  • Judicature (Court of Appeal Rules) Directions Rule 42(2)
  • Judicature (Court of Appeal Rules) Directions Rule 43(1)
  • Judicature (Court of Appeal Rules) Directions Rule 43(2)
  • Judicature (Court of Appeal Rules) Directions Rule 44(1)
  • Judicature (Court of Appeal Rules) Directions Rule 76

Cases cited (4)

  • Zubeda Mohamed and Another v Laila Kaka Wallia and Another (Civil Reference No. 07 of 2016)
  • Yakobo Senkungu and Others v Cerencio Mukasa (Civil Application No. 5 of 2013)
  • Hwang Sung Industries Ltd v Tajdin Hussein and 2 Others (Civil Application No. 19 of 2008)
  • Hon. Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 04 of 2014)
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.