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Nassuna v Kamoga & Others (Civil Application 45 of 2024)

Court of Appeal · [2024] UGCA 59 · 2024 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application before a single Justice of Appeal for a stay of execution pending determination of a pending application for leave to appeal.
Decision
Application for stay of execution dismissed.

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Holding

The applicant sought to stay execution of orders arising from litigation over disputed land pending her application for leave to appeal. Sitting as a single Justice of Appeal, the court found that no notice of appeal had been validly lodged in the High Court under rule 76, that the applicant showed no imminent threat of eviction and therefore no irreparable damage (the only execution being for taxed costs she had agreed to pay in instalments), and that her intended appeal had no likelihood of success because the underlying suit was res judicata — she litigated as successor in title to the first respondent, who had lost the land in an earlier final determination. The application was dismissed.

Facts

In 2009 the applicant bought a piece of land from the first respondent and built a residential house on it, where she lives with her family. While she was in possession, the first respondent sued the second and third respondents (registered proprietors of land comprised in Leasehold Register Volume 2220 Folio 1, Plot 13, Kome Drive, Luzira) in HCCS No. 378 of 2013; judgment was entered against the first respondent, who was found to be a trespasser liable to eviction. The applicant then filed her own suit, HCCS No. 17 of 2022, which was dismissed as res judicata, and successive applications for review and for leave to appeal were also dismissed. She filed Court of Appeal Civil Application No. 1269 of 2023 seeking leave to appeal, and the present application to stay execution pending its determination. The respondents had extracted a notice to show cause why execution should not issue to recover UGX 22,206,500 in taxed costs, in respect of which the applicant had proposed a voluntary eight-instalment payment plan.

Issues

  1. Whether a valid notice of appeal had been lodged so as to ground the court's power to order a stay of execution under rule 6(2)(b) of the Court of Appeal Rules.
  2. Whether the applicant would suffer irreparable damage or her appeal would be rendered nugatory if the stay was not granted.
  3. Whether the applicant's pending application for leave to appeal had a strong likelihood of success or disclosed a prima facie case of the right to appeal.
  4. Whether the application was brought without unreasonable delay.
  5. Where the balance of convenience lay.

Orders

  • Application for stay of execution dismissed.
  • Costs to abide the disposal of Civil Application No. 1267 of 2023 now pending hearing in the court.

Key headnotes

Civil Procedure — Stay of Execution — Conditions for grant by an appellate court
An appellate court will grant a stay of execution only where the applicant shows that irreparable damage will be suffered or the appeal rendered nugatory if the order is refused, that the appeal has a strong likelihood of success or discloses a prima facie case of the right to appeal, failing which the court weighs the balance of convenience, and that the application was brought without delay.
Civil Procedure — Stay of Execution — Notice of appeal lodged under rule 76 as a precondition
The power to order a stay of execution under rule 6(2)(b) of the Court of Appeal Rules arises only where a notice of appeal has been lodged in accordance with rule 76, namely in writing and in duplicate with the registrar of the High Court; a document filed in the Court of Appeal does not satisfy that requirement.
Civil Procedure — Stay of Execution — Irreparable damage — Speculative threat insufficient
A mere notice to show cause why execution should not issue, directed at the recovery of taxed costs, does not establish an imminent threat of eviction; allegations of execution that are premature and speculative do not amount to irreparable damage so as to justify a stay.
Civil Procedure — Res Judicata — Successor in title bound by prior final determination
A party who claims land as successor in title to an earlier litigant is bound by the final determination against that predecessor; a suit re-litigating the same subject matter between parties claiming under the same title is res judicata under section 7 of the Civil Procedure Act and an intended appeal against its dismissal has no likelihood of success.
Civil Procedure — Review — Appeal against refusal of review requires leave
While a person aggrieved has an automatic right to apply for review under section 82 of the Civil Procedure Act and Order 46 rule 1, no appeal lies from an order refusing a review except, by Order 46 rule 2, with the leave of the court making the order or of the court to which an appeal would lie.

Legislation cited (11)

  • Judicature Act s.33
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.2(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.6(2)(b)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.42(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.43
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.44
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.76
  • Civil Procedure Act s.82
  • Civil Procedure Act s.7
  • Civil Procedure Rules Order 46 r.1
  • Civil Procedure Rules Order 46 r.2

Cases cited (6)

  • Akankwasa Damian v Uganda (Constitutional Application No. 7 and 9 of 2011)
  • Theodore Ssekikubo and Others v Attorney General (Constitutional Application No. 6 of 2013)
  • Dr Ahamed Kisuule v Greenland Bank (In Liquidation) (Civil Appeal No. 7 of 2020)
  • Gashumba Maniraguha v Nikundiye (Civil Appeal No. 24 of 2015)
  • Mansukhlal Ramji Karia and Crane Finance Co Ltd v Attorney General and Others (Civil Appeal No. 20 of 2002)
  • Ismail Karshe v Uganda Transport Ltd (Civil Suit No. 553 of 1966)
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.