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Brian Kigozi v Kirunda Moses Menya (Civil Application No 136 of 2025)

Court of Appeal · [2025] UGCA 203 · 2025 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion for a stay of execution pending the determination of a civil appeal, heard by a single Justice of Appeal
Decision
Stay of execution granted pending the final determination of Civil Appeal No. 1106 of 2024

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Holding

The single Justice granted a stay of execution pending determination of Civil Appeal No. 1106 of 2024. Applying the principles in Kyazze v Businge and Theodore Ssekikubo, the court held that execution is a process rather than a single event, so the respondent's filing of a bill of costs and commencement of taxation established an imminent threat of execution. The application had been brought without unreasonable delay; the appeal raised arguable triable issues (double compensation, locking out evidence, trespass versus negligence) with a likelihood of success; and the applicant would suffer substantial loss because complying with the order to build a perimeter wall, then demolishing it if the appeal succeeded, could not be atoned for in damages. The balance of convenience favoured the applicant.

Facts

Judgment in Civil Suit No. 1535 of 2023 (High Court, Land Division) was entered in favour of the respondent, who succeeded against the applicant in a dispute concerning land and a collapsed perimeter/retainer wall. The trial court awarded general and special damages to the respondent and ordered the applicant to construct a retainer wall on his land. The applicant lodged a notice of appeal and a memorandum of appeal challenging the whole judgment, becoming Civil Appeal No. 1106 of 2024. An earlier application for stay in the High Court (Misc. Application No. 3305 of 2024) was dismissed. The respondent extracted a decree, filed a bill of costs and commenced taxation (Taxation Applications No. 443 of 2024 and No. 81 of 2025) and invited the applicant to a pre-taxation meeting. The applicant, contending that compliance would require building a wall in a space gazetted by KCCA as a drainage channel that would later have to be demolished if the appeal succeeded, applied to the Court of Appeal for a stay, offering his certificate of title (estimated value UGX 1,000,000,000) as security.

Issues

  1. Whether there was an imminent or serious threat of execution of the decree justifying a stay.
  2. Whether the application for stay of execution was brought without unreasonable delay.
  3. Whether the pending appeal raised arguable issues with a likelihood of success.
  4. Whether the applicant would suffer substantial or irreparable loss, or whether the appeal would be rendered nugatory, if the stay were not granted.
  5. Where the balance of convenience lay.

Orders

  • An order for stay of execution is issued pending the final determination of the main appeal.
  • Costs shall be in the cause.

Key headnotes

Civil Procedure — Stay of Execution — Jurisdiction and Discretion under Rule 6(2)(b)
The Court of Appeal has discretion, where a notice of appeal has been lodged in conformity with the Rules, to order a stay of execution in civil proceedings on such terms as it thinks just; the discretion is judicial and must be exercised on the basis of facts and sound legal principles so as not to render the appeal nugatory.
Civil Procedure — Stay of Execution — Conditions for Grant
An applicant for a stay of execution pending appeal must establish a likelihood of success or a prima facie right to appeal, that he will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted, that the balance of convenience favours a stay, and that the application was made without delay.
Civil Procedure — Execution — Taxation of Costs as Commencement of Execution
Execution is a process and not a single event; the filing of a bill of costs and commencement of taxation form part of the execution process and establish the existence of an imminent threat of execution for the purposes of a stay application.
Civil Procedure — Stay of Execution — Meaning of Substantial Loss
Substantial loss does not represent any particular size or amount but refers to any loss, great or small, that is of real worth or value as distinguished from a loss that is merely nominal; loss that cannot be atoned for by an award of damages qualifies.
Civil Procedure — Stay of Execution — Meaning of an Arguable Appeal
An arguable appeal does not mean an appeal which will or must succeed, but simply one which can be argued; an appeal raising reasonable triable issues meriting the court's consideration is sufficient, and on a stay application the court should not usurp the role of the bench that will hear the appeal.

Legislation cited (10)

  • 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
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.43
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.46
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.47
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.76
  • Civil Procedure Rules O.43
  • Civil Procedure Act s.98
  • Judicature Act s.37

Cases cited (7)

  • Lawrence Musiitwa Kyazze v Eunice Businge (Civil Application No. 18 of 1990)
  • DFCU Bank v Crane Management Services Limited (Miscellaneous Application No. 0236 of 2025)
  • Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 6 of 2013)
  • Osman Kassim Ramathan v Century Bottling Company Ltd SCCApp No. O35 of 2O79
  • Registered Trustees of the Hindu llnion v Kagoro Epimac & 2 Others Court of Appeal Civil Application No. 3O4 of 2O77
  • Robert Kibagendi Otachi and Another Housing Finance Co. of Kenya Ltd Nairobi Civil Application No. 251 of 7996
  • Tropical Commodities Supplies Ltd and Others v International Credit Bank Ltd (in liquidation) (2004) 2 EA 331
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.