Wakilii

Idiringi v Tumusiime (Civil Application 177 of 2023)

Court of Appeal · [2023] UGCA 165 · 2023 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to a single Justice of Appeal for an order to stay execution of a High Court decree pending the determination of the applicant's appeal
Decision
Stay of execution granted, conditional on the applicant depositing UGX 50,000,000 as further security for costs and filing the memorandum and record of appeal within 30 days.

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The single Justice overruled the respondent's objection that the applicant, sued under a different name, lacked standing, holding that identity is a question of fact and the applicant had proved he and "Patrick Idringi Salvado" are the same person. On the stay criteria, an appeal was pending and the applicant had a prima facie right to appeal an order refusing to set aside an ex parte decree, which is appealable as of right under section 76 of the Civil Procedure Act and Order 44 rule 1(c). Although the applicant was guilty of inordinate delay, the court granted the stay on condition that he deposit UGX 50,000,000 as further security for costs and file his appeal within 30 days.

Facts

The applicant, Idringi Patrick Viera (also known by his stage name "Salvado"), was the judgment debtor in Kampala High Court (Commercial Division) Civil Suit No. 321 of 2018, in which judgment was entered against him ex parte by Gaswaga J on 16 August 2021 for a decretal sum of about UGX 500 million plus interest and costs. His application to set aside the ex parte judgment and stay execution (HCMA No. 1315 of 2021) was dismissed. He lodged a notice of appeal and deposited UGX 200,000 as security for costs of the appeal, but had not filed his memorandum of appeal more than a year later. The respondent filed bills of costs in the High Court for taxation, the starting figures being UGX 19,654,400 and UGX 31,021,608, prompting the applicant to seek a stay of execution on the ground that, without it, he would suffer irreparable loss and his appeal would be rendered nugatory.

Issues

  1. Whether the application was an abuse of court process and the applicant lacked locus standi because he brought it under a name different from that under which he was sued in the lower court, without a deed poll.
  2. Whether the applicant satisfied the criteria for the grant of an order to stay execution of the High Court decree pending the determination of his appeal.

Orders

  • The preliminary objection that the applicant lacked locus standi due to the discrepancy in his name is overruled.
  • An order to stay execution of the decree of the High Court in HCCS No. 321 of 2018 shall issue and inure until final disposal of the appeal.
  • The applicant shall deposit in court the additional sum of UGX 50,000,000 as further security for the costs of the appeal.
  • If not yet filed, the applicant shall file the memorandum and record of appeal within 30 days of the ruling, and the Registrar shall not accept it unless the applicant furnishes the security for costs ordered.
  • The costs of this application shall abide the result of the appeal.

Key headnotes

Civil Procedure — Stay of Execution — Criteria for grant
An order to stay execution will be granted where the applicant will suffer irreparable damage or the appeal will be rendered nugatory if it is not granted; the appeal has a likelihood of success or shows a prima facie right of appeal; failing those, the balance of convenience favours the applicant; and the application was instituted without delay.
Civil Procedure — Parties — Identity of party sued under different names
Failure to execute a deed poll does not change a person's identity; whether a person known by different names is one and the same person is a question of fact that may be proved by evidence such as a sworn affidavit, and a deed poll is not the only admissible proof.
Civil Procedure — Stay of Execution — Security for due performance of decree
Unlike the High Court, which is bound by Order 43 rule 3(c) to require security for the due performance of the decree, the Court of Appeal under rule 6(2)(b) of its Rules may order a stay on such terms as it thinks just, so security for performance of the decree is discretionary rather than mandatory.
Civil Procedure — Appeals — Right of appeal against refusal to set aside ex parte decree
An order under Order IX rule 27 rejecting an application to set aside a decree passed ex parte is a final order appealable under Order 44 rule 1(c) and as of right under section 76 of the Civil Procedure Act, establishing a prima facie right of appeal for the purposes of a stay application.
Civil Procedure — Stay of Execution — Threat of execution from taxation of costs
Taxation of costs is a process of law for the enforcement of, or giving effect to, the judgments or orders of a court and accordingly constitutes an imminent threat of execution capable of grounding an application to stay execution.

Legislation cited (11)

  • Judicature Act s.48(1)(b)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 2(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 6(1) and (2)(b)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 43(1) and (2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 94
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 105
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 113
  • Civil Procedure Act s.76
  • Civil Procedure Rules Order 44 rule 1(c)
  • Civil Procedure Rules Order IX rule 27
  • Civil Procedure Rules Order 43 rule 3(c)

Cases cited (7)

  • Theodore Ssekikubo & Others v Attorney General (Constitutional Application No. 3 of 2014)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Application No. 18 of 1990)
  • Kyambogo University v Isaiah Omolo Ndiege (Civil Application No. 341 of 2013)
  • Osman Kassim Ramathan v Century Bottling Company Ltd (Supreme Court Civil Application No. 35 of 2019)
  • Imperial Royale Hotel Ltd & 2 Others v Ochan Daniel (Miscellaneous Application No. 111 of 2012)
  • Uganda Land Commission v James Mark Kamoga & Another (Supreme Court Civil Application No. 8 of 2004)
  • Hashim Suleiman v Onega Robert (Election Petition Appeal No. 1 of 2021)
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.