Sewaalinte v Kayizzi (Civil Miscellaneous Application 237 of 2023)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

A single Justice of the Court of Appeal granted a stay of execution pending determination of the appeal in a land suit. The court held that, on the authorities, an applicant must establish a prima facie case or likelihood of success on appeal, that irreparable damage or a nugatory appeal would result without a stay, and that the application was made without undue delay. The court found the applicant had shown a prima facie case from the memorandum of appeal, that an imminent threat of execution over land from which the applicant and his family derive their livelihood amounted to irreparable damage, and that there was no inordinate delay. The conditions for a stay were satisfied.

Facts

The respondent sued the applicant in the High Court Land Division (Civil Suit No. 438 of 2013) and judgment was entered in the respondent's favour on 29 June 2017, requiring the applicant to permit surveyors to survey and mutate off five acres of the suit land for transfer to the respondent. The applicant filed a notice of appeal and later Civil Appeal No. 87 of 2022 challenging the judgment. An earlier application for stay of execution in the High Court was dismissed. The respondent began enforcement steps, including a notice to show cause why execution should not issue and entry onto the suit land. The applicant, asserting that he and his family derive their livelihood from the land and that the appeal would be rendered nugatory, applied to the Court of Appeal for a stay of execution pending the appeal.

Issues

1. Whether the applicant established a prima facie case with a likelihood of success on appeal.
2. Whether the applicant would suffer irreparable damage or the appeal would be rendered nugatory if a stay of execution were not granted.
3. Whether the application for a stay of execution was instituted without undue delay.

Orders

• A stay of execution is granted staying the orders in High Court Civil Suit No. 438 of 2013 pending determination of the appeal.
• The costs of this application shall abide the outcome of the appeal.

Key headnotes

Legislation cited (5)

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

Cases cited (11)

• Dr. Ahmed Mohammad Kisule v Greenland Bank (In Liquidation) (Civil Appeal No. 7 of 2010)
• Laurence Mushwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
• Laurence Mushwa Kyazze v Eunice Busingye (Civil Appeal No. 18 of 1990)
• Hon. Theodore Ssekikubo and Others v Attorney General (Constitutional Application No. 4 of 2014)
• Hon. Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 3 of 2014)
• Hon. Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 6 of 2013)
• Uganda Revenue Authority v National Social Security Fund (Civil Application No. 43 of 2023)
• Haruna Sentengo v I&M Bank (U) Limited (Civil Application No. 173 of 2023)
• Gashumba Manhanguha v Sam Nkundiye (Civil Application No. 24 of 2015)
• Tropical Commodities Suppliers Ltd and Others Vs International Credit Bank Ltd (In Liquidation) (2004) 2 EA 337
• Stanley Kang'ethe Kinganjui V Tony Ketter and 5 Ors (2013) eKLR