Balwaine v Asinga (Civil Application 562 of 2023)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

The applicant sought a stay of execution pending appeal, contending that the eviction had been only partially executed because he had secured one room of the suit property. Having perused the affidavits, the Return of Warrant of Attachment and the photographs, the single Justice found that the execution had been fully carried out and completed on 4 September 2023, so the application was overtaken by that event. The Court declined to consider the conditions for grant of a stay as that would be a moot exercise, and held that any room the applicant retained amounted to an illegal occupation which the Court could not sanction by granting a stay. The application was dismissed with costs.

Facts

The High Court gave judgment against the applicant on 20 May 2022 in Originating Summons / Civil Suit No. 006 of 2022. The applicant filed a Notice of Appeal and later Civil Appeal No. 806 of 2023, and requested a record of proceedings. An eviction notice was issued and the applicant obtained an interim stay in the High Court, but the main application for stay (HC Miscellaneous Application No. 933 of 2022) was heard and dismissed on 21 July 2023. The applicant then brought this application in the Court of Appeal. The respondent and the court bailiff swore affidavits stating that execution of the decree was carried out on 4 September 2023, when vacant possession of the suit plot and premises was handed over to the respondent, supported by a Return of Warrant of Attachment and photographs. The applicant contended that execution was only partial because he had secured one room where he and his family continued to reside.

Issues

1. Whether the application for stay of execution had been overtaken by events because the execution sought to be stayed had already been carried out and completed.

Orders

• Application dismissed with costs to the respondent.

Key headnotes

Legislation cited (4)

• Judicature (Court of Appeal Rules) Directions SI 13-10 rr.1(2), 2(2), 6(2), 42, 43, 44
• Constitution of Uganda 1995 art.28
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.76
• Judicature (Court of Appeal Rules) Directions SI 13-10 rr.83(d), 105

Cases cited (10)

• Attorney General v Kabaziguruka (Constitutional Application No. 5 of 2021)
• Akankwasa Damian v Uganda (Constitutional Application No. 7 & 9 of 2011)
• Tropical Commodities Supplies Ltd & 2 Ors v International Credit Bank Ltd (in liquidation) [2004] 2 EA 331
• Phenny Mwesigwa v Petrol Uganda Limited (Civil Appeal No. 129 of 2019)
• John Baptist Kawanga v Namyalo Kevin and another (Miscellaneous Application No. 12 of 2017)
• Katayira Francis v Rogers Bosco Bugembe (Civil Reference No. 9 of 2017)
• Joseph Mubiru Kizito v African Forward Christian Ministries (Civil Application No. 300 of 2023)
• Lawrence Musiitwa Kyazze v Eunice Besigye (Civil Application No. 18 of 1990)
• Dr. Ahmed Muhammed Kisuule v Greenland Bank (in liquidation) (Civil Appeal No. 7 of 2010)
• Hon. Theodore Sselrikubo & 3 others vs The Attorney General & 4 Others, (supra)