Anyalitho v Mutonyi (Miscellaneous Application No. 300 of 2021)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

The Court considered the requirements for an interim stay of execution under Rule 2(2) of the Court of Appeal Rules. It held that a valid Notice of Appeal, a pending substantive application for stay, and a serious threat of execution suffice; proof of a Memorandum of Appeal is unnecessary. Finding that the applicant faced both an eviction order and a disingenuous attempt to execute, creating an imminent danger that would render the pending appeal nugatory, the Court allowed the application and granted the interim stay, with costs to abide the outcome of the substantive application.

Facts

An eviction order issued against the applicant in respect of land described as Plot 3 Bupoto Close pursuant to a judgment of the Chief Magistrates Court of Mbale in Civil Suit No. 89 of 2007. The applicant's appeal to the High Court at Mbale (Civil Appeal No. 9 of 2019) was dismissed, after which the respondent recommenced execution. The applicant lodged a second appeal in the Court of Appeal and sought to stay execution of the lower courts' decisions pending its determination. The respondent contended that execution had been completed on 25 October 2021 and that the application had been overtaken by events. The applicant denied that execution had concluded, asserting it was interrupted by police intervention and that he remained in possession of the disputed premises. A Notice of Appeal had been lodged.

Issues

1. Whether the applicant satisfied the conditions for the grant of an interim order of stay of execution pending the disposal of the substantive application.
2. Whether the existence of a Notice of Appeal, as opposed to a Memorandum of Appeal, is sufficient for the grant of an interim stay of execution.
3. Whether the application had been overtaken by events on account of completed execution.

Orders

• Application allowed.
• Costs to abide the outcome of the substantive application.

Key headnotes

Legislation cited (8)

• Judicature Act, Cap 13 s.10
• Judicature Act, Cap 13 s.12
• Judicature (Court of Appeal Rules), SI 13-10 Rule 2
• Judicature (Court of Appeal Rules), SI 13-10 Rule 2(2)
• Judicature (Court of Appeal Rules), SI 13-10 Rule 6(2)(b)
• Judicature (Court of Appeal Rules), SI 13-10 Rule 43
• Judicature (Court of Appeal Rules), SI 13-10 Rule 44
• Judicature (Court of Appeal Rules), SI 13-10 Rule 53

Cases cited (3)

• Hwang Sung Industries Limited v Tajdin Hussein and Others (Civil Application No. 19 of 2008)
• Zubeda Mohammed and Another v Laila Kaka Wallia and Another (Civil Application No. 7 of 2016)
• Theodore Ssekikubo and 2 Others v Attorney General and 4 Others (Constitutional Application No. 4 of 2014)