Wakilii

Kisekka v Rwabunyoro (Civil Application 1131 of 2023)

Court of Appeal · [2024] UGCA 239 · 2024 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to a single Justice of Appeal for an interim order of stay of execution pending appeal
Decision
Application for interim stay of execution dismissed

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Holding

The single Justice of Appeal held that an interim order of stay of execution requires a competent notice of appeal, a pending substantive application for stay, and a serious threat of execution, the existence of a competent notice of appeal being a sine qua non. Because the underlying suit was dismissed in a matter not carrying an automatic right of appeal, and the applicant's application for leave to appeal had been dismissed for want of prosecution, the notice of appeal was incompetent and there was no pending appeal. On that ground alone the application failed and was dismissed.

Facts

The applicant filed a civil suit in the Land Division of the High Court concerning suit land, later transferred to the High Court at Mubende. The High Court ruled that the plaint disclosed no cause of action and dismissed the suit. The applicant filed a notice of appeal and an application in the High Court for leave to appeal and stay of execution, but that application was dismissed for want of prosecution. The applicant then filed a substantive application for stay of execution in the Court of Appeal and the present application for an interim order, asserting threats of eviction and alienation of the land to third parties pending the intended appeal. The respondent opposed the application, noting that the costs had been taxed at UShs 123,109,400, that no execution application had been filed, and that leave to appeal had never been obtained.

Issues

  1. Whether the applicant satisfied the conditions for the grant of an interim order of stay of execution pending appeal.
  2. Whether a notice of appeal filed in a matter requiring leave to appeal, where leave was not obtained, can found an application for stay of execution.

Orders

  • Application dismissed with no order as to costs.

Key headnotes

Civil Procedure — Stay of Execution — Conditions for an Interim Order Pending Appeal
To obtain an interim order of stay of execution it suffices to show a competent notice of appeal, a pending substantive application for stay, and a serious threat of execution before the hearing of the substantive application; the court need not pre-empt consideration of the matters relevant to the substantive application.
Civil Procedure — Right of Appeal — Competence of Notice of Appeal Where Leave Not Obtained
The right of appeal is a creature of statute and there is no inherent right of appeal; where a notice of appeal is filed but the right of appeal does not exist because requisite leave has not been obtained, the notice of appeal is incompetent and cannot form the basis for an application for stay of execution, there being no pending appeal.

Legislation cited (4)

  • 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.43(1)
  • Civil Procedure Rules Order 39

Cases cited (8)

  • Theodore Ssekikubo and 3 Others v Attorney General (Constitutional Application No. 6 of 2013)
  • Hwan Sung Industries Ltd v Taidin Hussein and 2 Others (Civil Application No. 19 of 2008)
  • Lawrence Musiitwa Kyazze v Eunice Businge (Civil Application No. 18 of 1990)
  • Zubeda Mohammed and Another v Laila Kaka and Another (Civil Reference No. 7 of 2016)
  • Theodore Ssekikubo and 2 Others v Attorney General and 4 Others (Constitutional Application No. 4 of 2014)
  • Uganda Revenue Authority v Nsubuga Guster & Another, Miscellaneous Application No. 1t o'[-20'1E
  • Patrick Kaumba Wiltshire v Ismail Dabule (Civil Application No. 3 of 2018)
  • Lukwago Erias and Another v Attorney General and Another (Civil Application No. 6 of 2014)
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.