Wakilii

Mutungi & Another v Rubadiri & Others (Civil Application 44 of 2024)

Court of Appeal · [2024] UGCA 63 · 2024 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal, heard by a single Justice of Appeal
Decision
Application for stay of execution dismissed with costs to the respondents

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The single Justice dismissed an application to stay execution pending appeal. She held there was no imminent threat of execution because the date set in the notice to show cause had passed without a hearing, so no substantial loss arose. The appeal against the contempt orders disclosed no likelihood of success: the applicants' affidavits were materially contradictory and the first applicant had perjured himself, so the application was not brought in good faith and the balance of convenience need not be considered. Applying authority that a contemnor may nonetheless be heard where the application challenges the very order grounding the contempt, the court entertained the application but refused the stay and awarded costs to the respondents.

Facts

A land dispute between the families of the late Christopher Kajundira and the late Bishop Kosiya Shalita dated from 1987. In Chief Magistrate's Court Civil Appeal No. 76 of 1990 the land was declared to belong to Bishop Shalita and Kajundira a trespasser; an eviction was executed in February 1997. After Kajundira's death, the applicants — his estate administrator and a relative claiming a separate allocation from Kiruhura District Land Board — re-occupied the land. The respondents obtained orders in HCMA No. 172 of 2022 finding the applicants in contempt and requiring them to vacate and pay UGX 10,000,000, and further orders cancelling certificates of title the applicants had acquired over the disputed land. The applicants appealed (Civil Appeal No. 176 of 2023) and sought to stay execution. A notice to show cause why their property should not be attached, returnable 14 February 2024, passed without a hearing.

Issues

  1. Whether the applicants would suffer substantial or irreparable loss if a stay of execution pending appeal were not granted.
  2. Whether the appeal had a likelihood of success or disclosed a prima facie case of a right to appeal.
  3. Where the first two conditions are not established, where the balance of convenience lies.
  4. Whether the application was instituted without unreasonable delay.
  5. Whether a party found to be in contempt of court orders may be heard on an application before purging the contempt.

Orders

  • The order to stay execution of the fine to purge the contempt pending the hearing of the appeal is denied and dismissed.
  • The applicants shall pay the costs of the application in any event.

Key headnotes

Civil Procedure — Stay of Execution — Conditions for grant pending appeal
A stay of execution pending appeal may be granted where the applicant will suffer irreparable damage or the appeal will be rendered nugatory if the order is not made, the appeal has a likelihood of success or discloses a prima facie right to appeal, the balance of convenience favours the applicant, and the application was instituted without unreasonable delay.
Civil Procedure — Stay of Execution — Threat of execution and substantial loss
An applicant fails to establish the risk of substantial or irreparable loss where the threatened execution has ceased to be imminent, as where the return date of a notice to show cause passes without a hearing and no subsequent steps to execute are demonstrated.
Civil Procedure — Contempt of Court — Audience of a contemnor before purging contempt
A party in civil contempt of subsisting court orders cannot be heard in a related cause until the contempt is purged, save where the purpose of the application is to appeal against or set aside the very order whose disobedience constitutes the contempt, in which case the court may entertain it.
Civil Procedure — Discretionary Relief — Good faith and clean hands of the applicant
Discretionary relief such as a stay of execution will be refused where the applicant has not approached the court in good faith, including where the supporting affidavits are materially contradictory of earlier sworn statements and amount to perjury.

Legislation cited (7)

  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.2(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.6(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
  • Constitution of Uganda art.28
  • Limitation Act

Cases cited (9)

  • Lawrence Musiitwa Ryazze v Eunice Busingye (Civil Application No. 18 of 1990)
  • Theodore Ssekikubo & Others v Attorney General & Another (Constitutional Application No. 6 of 2013)
  • Housing Finance Bank Ltd & Another v Edward Musisi (Misc Application No. 158 of 2010)
  • Jingo Livingstone Mukasa v Hope Rwaguma (Civil Appeal No. 190 of 2015)
  • Male H. Mabirizi Kiwanuka v Attorney General (Civil Application No. 549 of 2022)
  • X Ltd v Morgan-Grampian (Publishers) Ltd [1991] AC 1
  • The Messiniaki Tolmi [1981] 2 Lloyd's Rep 595
  • Hadkinson v Hadkinson [1952] P 285
  • In re Clements, Republic of Costa Rica v Erlanger (1877) 46 LJ Ch 375
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.