Wakilii

Kalyeboga v Muhammed (Civil Application 740 of 2023)

Court of Appeal · [2024] UGCA 86 · 2024 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion to a single Justice of the Court of Appeal for a stay of execution pending determination of a civil appeal
Decision
Application for stay of execution dismissed; each party to bear own costs

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Holding

On an application for a stay of execution pending appeal, the single Justice applied the Kyambogo University conditions: a lodged notice of appeal, a serious or imminent threat of execution, substantial loss, an arguable (non-frivolous) appeal with a likelihood of success, and that refusal would cause greater hardship. While a demand letter amounted to a threat of execution, the applicant failed to demonstrate substantial loss (the suit title had already been cancelled and registered in the respondent's name, and any loss could be compensated in damages), the appeal's prospects were weighed down by the respondent's defence, and the 18-month delay was unreasonable. The conditions were not met and the application was dismissed.

Facts

The applicant was sued, with five others, for unlawfully transferring the respondent's property comprised in LRV 147 Folio 10 Plot 4, Rubaga Road, in High Court Civil Suit No. 178 of 2009, which the respondent won. The decree ordered cancellation of the registered title and that the fourth defendant, Catherine Adong, vacate the suit property. The applicant filed Court of Appeal Civil Appeal No. 247 of 2020 and sought a stay of execution in the High Court, which was refused. He then applied to the Court of Appeal for a stay. By the time of the application the decree had been partially executed: the title had been cancelled and the property registered in the respondent's name. The applicant claimed the land was his matrimonial home where he lived with his wife (the fourth judgment debtor), but the record showed the person in possession was Catherine Adong, who had not appealed or sought a stay. The application was filed about 18 months after judgment.

Issues

  1. Whether the applicant satisfied the conditions for the grant of a stay of execution of the High Court decree pending the determination of the appeal.

Orders

  • The application fails and is dismissed.
  • Each party shall bear its own costs of the application.

Key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant Pending Appeal
An applicant for a stay of execution pending appeal must show a lodged notice of appeal, a serious or imminent threat of execution that would render the appeal nugatory, that substantial loss may result, that the appeal is not frivolous and has a likelihood of success, and that refusal would inflict more hardship than it would avoid.
Civil Procedure — Stay of Execution — Substantial Loss
Substantial loss is loss that cannot be quantified by monetary compensation; it is not enough to repeat the words of the rule, the specific loss must be identified, and where the loss can be adequately compensated in damages if the appeal succeeds the condition is not satisfied.
Civil Procedure — Stay of Execution — Likelihood of Success of Appeal
Merely filing an appeal does not entitle an applicant to a stay; the applicant bears the burden of showing the appeal has a likelihood of success, and a good defence put forward by the respondent may weigh down the appeal's prospects.
Civil Procedure — Stay of Execution — Delay in Filing
An unexplained delay of 18 months between delivery of judgment and the filing of an application for stay of execution is unreasonable and tells against the grant of the order.

Legislation cited (6)

  • Judicature (Court of Appeal Rules) Directions r.2(2)
  • Judicature (Court of Appeal Rules) Directions r.6(2)(b)
  • Judicature (Court of Appeal Rules) Directions r.42(2)
  • Judicature (Court of Appeal Rules) Directions r.43
  • Judicature (Court of Appeal Rules) Directions r.44
  • Judicature Act s.33

Cases cited (5)

  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Civil Application No. 341 of 2013)
  • Dr. Ahmed Muhammed Kasule v Greenland Bank (In Liquidation) (Civil Appeal No. 7 of 2010)
  • Lawrence Musitwa Kyazze v Eunice Busingye (Civil Appeal No. 18 of 1990)
  • Tropical Commodities Suppliers Ltd & Ors Vs International Credit Bank Ltd (in liquidation) [2004] 2 EA 331
  • Gapco Uganda Ltd v Kaweesa & Anor (Miscellaneous Application No. 259 of 2013)
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.