Garelnabi v Nayiga (Civil Application No. 682 of 2022)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

A single Justice of the Court of Appeal held that an applicant seeking an interim order of stay of execution must satisfy three conditions: a competent notice of appeal, a pending substantive application, and a serious threat of execution before the hearing of that substantive application. The applicant had filed a notice of appeal and a substantive stay application (Civil Application No. 69 of 2022), and the respondent's commenced execution of taxed costs evidenced a serious threat of execution. The court accordingly granted the interim stay restraining execution and eviction pending determination of the substantive application, with costs to abide the outcome.

Facts

Both the applicant and the respondent held certificates of title over the same piece of land comprised in Kyadondo Block 248 Plot 244 at Kawuku, Ggaba, Makindye Division, Kampala. The applicant was registered as proprietor from 2 July 1976 and the respondent from 12 January 2001. The respondent occupied the land until 2005 when the applicant evicted her. She sued in the High Court Land Division (Civil Suit No. 72 of 2006) for trespass and fraud; the trial judge found the applicant a trespasser and granted vacant possession, cancellation of his title, general damages and costs. The applicant's appeal to the Court of Appeal (Civil Appeal No. 231 of 2019) was dismissed. The applicant filed a notice of appeal and memorandum of appeal in the Supreme Court, and a substantive stay application (Civil Application No. 69 of 2022) pending hearing. Asserting an imminent threat of execution, evidenced by the respondent's taxation of costs and an application for execution of order, he sought an interim order of stay of execution.

Issues

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

Orders

• An interim order of stay is issued restraining the respondent, her agents and persons claiming under her from executing the decree and/or orders of the Court of Appeal in Civil Appeal No. 231 of 2019 and any orders arising therefrom, and from evicting the appellant and his agents from the land comprised in Kyadondo Block 248 Plot 244 at Kawuku, Ggaba, Makindye Division, Kampala, pending determination and final disposal of the substantive application vide Civil Application No. 69 of 2022.
• The costs of this application shall abide the outcome of the substantive application for stay of execution.
• The Registrar is directed to fix Civil Application No. 69 of 2022 before a full bench at the next convenient session of the Court.

Key headnotes

Legislation cited (5)

• Judicature (Court of Appeal Rules) Directions r.2(2)
• Judicature (Court of Appeal Rules) Directions r.6(2)
• Judicature (Court of Appeal Rules) Directions r.43
• Judicature (Supreme Court Rules) Directions r.2(2)
• Judicature (Supreme Court Rules) Directions r.41(1)

Cases cited (5)

• China Henan International Cooperation Group Co. Ltd v Kgabahua (Civil Application No. 29 of 2021)
• Laurence Musisitwa Kgazze V Eunice Busingye, Civil Application No.78 of 1990
• Rosemary Binuomukanna & Anor v Uganda Wildlife Authority (Civil Application No. 73 of 2019)
• Zubeda Mohamed & Anor v Walji & Anor (Civil Reference No. 7 of 2016)
• Huang Sung Industries Ltd v Hussein & 2 Ors (Civil Application No. 19 of 2008)