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Electro-Maxx (U) Limited v ABSA Bank Uganda Limited & Another (Civil Application 1185 of 2023)

Court of Appeal · [2024] UGCA 199 · 2024 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application before a single Justice of the Court of Appeal for a stay of execution of High Court orders pending determination of a related application for leave to appeal.
Decision
Stay of execution granted pending determination of Civil Application No. 1184 of 2023

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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

On a respondent's preliminary objection, the single Justice held that a single Justice has no jurisdiction to determine the competence of an application for leave to appeal — that is for the full panel — and overruled the objection. On the merits, the Court found the intended appeal raised triable issues, so the respondent's argument that it would fail because leave was sought out of time was speculative; there was a real risk of execution against the applicant's shareholders amounting to irreparable damage; and the balance of convenience favoured the applicant. The application for stay of execution was granted pending determination of the related application for leave to appeal (Civil Application No. 1184 of 2023).

Facts

The applicant entered a consent judgment with the respondents in High Court Civil Suit No. 162 of 2020, which was later varied by two consent variation orders. The applicant subsequently sought to set aside the consent judgment through High Court Miscellaneous Application No. 1195 of 2022, which Justice Stephen Mubiru dismissed. As the order was not appealable as of right under Order 44(1) CPR, the applicant filed a notice of appeal and sought leave to appeal and a stay of execution from the High Court; both were dismissed. The applicant then filed an application for leave to appeal (Civil Application No. 1184 of 2023) and this application for stay of execution in the Court of Appeal. The first respondent was already enforcing rights under the consent judgment, creating a risk of execution against the applicant's individual shareholders.

Issues

  1. Whether the application for stay of execution was competent given that the underlying application for leave to appeal was still pending and was alleged to have been filed out of time.
  2. Whether the applicant satisfied the conditions for the grant of a stay of execution pending appeal.

Orders

  • An order of stay of execution of the orders in Civil Suit No. 162 of 2020 is issued pending the hearing and final determination of Civil Application No. 1184 of 2023.
  • Costs shall abide the outcome of Civil Application No. 1184 of 2023.
  • The Registrar is required to cause-list the application in the next convenient session.

Key headnotes

Civil Procedure — Court of Appeal — Single Justice — Jurisdiction to determine competence of a leave-to-appeal application
A single Justice of the Court of Appeal has no jurisdiction to determine the competence of an application for leave to appeal; such a question must be determined by the full panel of the Court.
Civil Procedure — Stay of execution — Conditions for grant pending appeal
An applicant for a stay of execution pending appeal must establish that the appeal has a likelihood of success or a prima facie case of the right to appeal, that the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is refused, and, where those are not established, that the balance of convenience favours a stay; the applicant must also show that the application was brought without delay.
Civil Procedure — Stay of execution — Likelihood of success — Triable issues
In assessing likelihood of success on a stay application the court does not decide the appeal but need only be satisfied that the intended appeal raises triable issues meriting consideration; an assertion that the appeal will fail because leave was sought out of time is speculative and is a matter for the full coram.
Civil Procedure — Stay of execution — Irreparable damage — Execution against shareholders
Where there is a real risk of execution against the individual shareholders of an applicant company before the determination of the points of law raised in the intended appeal, the requirement of irreparable damage is satisfied.

Legislation cited (8)

  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.2(2)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.6(2)(b)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.42(1)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.53(2)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.76
  • Civil Procedure Rules O.44 r.1
  • Civil Procedure Rules O.41 r.1 & 2
  • Judicature Act s.6(2)

Cases cited (8)

  • Theodore Ssekikubo & Ors v Attorney General & Others (Constitutional Application No. 6 of 2013)
  • Giella v Cassman Brown & Co [1973] EA 358
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR
  • Kyavawa Betty & 5 Ors v Tebajjukira Milly & Anor (Civil Application No. 1068 of 2023)
  • Busia Produce Dealers Multi-Purpose Cooperative Society v Stanbic Bank (U) Limited (Civil Application No. 185 of 2021)
  • Jomayi Property Consultants Ltd v Andrew Maviiri (Civil Reference No. 174 of 2015)
  • Gashumba Maniraguha v Sam Nkundiye (SC Civil Application No. 24 of 2015)
  • Jayndrakumar Devechand Devani v Haridas Vallabhdas Bhadresa & Anor [1971] EACA 11
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.