Wakilii

Kiyaga Edward v Christy Mary Namakula Kapere (Civil Application No. 1293 of 2023)

Court of Appeal · [2025] UGCA 220 · 2025 Application Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion before a single Justice of the Court of Appeal for a stay of execution pending appeal
Decision
Stay of execution granted pending appeal, but limited to orders not yet executed; the completed eviction was not reversed

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Holding

On an application for a stay of execution pending appeal, the single Justice held that a court cannot stay execution that has already taken place; since the eviction was completed on 7 April 2025 and the respondent was in possession, staying the eviction was a futile exercise. However, as the applicant had lodged a pending appeal raising arguable issues on the alleged fraudulent acquisition of the respondent's title, and to prevent the appeal being rendered nugatory, the court granted a stay limited to those orders (decretal awards) not yet executed. Security for due performance was not imposed because part of the decree had already been executed. Costs were ordered to be in the cause.

Facts

The applicant instituted High Court Civil Suit No. 026 of 2023 against the respondent over land comprised in FRV MAS 54 Folio 23, Plot 5 Kamurasi Road, Hoima Municipality, alleging fraudulent registration. On 2 March 2023 the High Court delivered judgment in favour of the respondent, declaring her the rightful owner and ordering vacant possession. The applicant appealed (Civil Appeal No. 254 of 2023) and first sought a stay in the High Court (Misc. Application No. 101 of 2023), which was dismissed. He then brought this application in the Court of Appeal. Meanwhile, the respondent obtained a warrant of eviction (Execution Misc. Application No. 017 of 2024) and, through court bailiffs, executed the eviction on 7 April 2025 in the presence of the applicant's agents and police, taking possession of the suit property. The applicant claimed long possession since 1978 and that demolition of structures on the developed land would cause irreparable loss to his livelihood.

Issues

  1. Whether the applicant satisfied the conditions for the grant of a stay of execution pending the determination of his appeal.
  2. Whether the application was rendered moot by the fact that the eviction had already been executed before the application was heard.

Orders

  • A stay of execution is granted pending the determination of Civil Appeal No. 254 of 2023, limited to the orders (decretal awards) that have not yet been executed.
  • The court does not reverse the eviction already carried out; the status quo preserved is that existing at the determination of this application.
  • Costs shall be in the cause.

Key headnotes

Civil Procedure — Stay of Execution Pending Appeal — Conditions for Grant
An applicant for a stay of execution pending appeal must show that a notice of appeal has been lodged, that substantial loss may result unless the stay is granted, that the application was made without unreasonable delay, and that security has been given for due performance of the decree; additionally there must be a serious or imminent threat of execution that would render the appeal nugatory, the application must not be frivolous and must have a likelihood of success, and refusal must inflict more hardship than it would avoid.
Civil Procedure — Stay of Execution — Execution Already Completed
A court cannot order a stay of execution unless it is certain that the execution has not taken place; where execution has already occurred, a stay of that execution is a futile exercise, and the court may only grant a stay in respect of orders not yet executed.
Civil Procedure — Stay of Execution — Substantial Loss
For a stay to be granted the loss must be over and above the ordinary loss resulting from litigation, and the applicant must demonstrate that restoration or compensation would be impossible; where the suit property has an ascertainable value and the applicant could be compensated or restored if the appeal succeeds, substantial loss is not established.
Civil Procedure — Stay of Execution — Security for Due Performance
The provision of security for due performance of the decree is a matter for the court's discretion to impose as a term of granting a stay rather than an absolute bar; where the decree-holder has already executed part of the decree, it would not be fair to require the applicant to give security for the balance.

Legislation cited (7)

  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.2(2)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.6(2)(b)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.43
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.44
  • Judicature Act Cap 16 s.37
  • Civil Procedure Act Cap 282 s.98
  • Civil Procedure Rules O.43 r.4

Cases cited (5)

  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Application No. 18 of 1990)
  • Hon Theodore Ssekikubo and ors vs The Attorney General
  • Kyambogo University Prof. lsaiah Omolo Ndiege (Supra)
  • Stanbic Bank Uganda Limiteds Vs Abatya Agencies timited (Supreme Court Civil Appeal No. of 2012)
  • Re: Timothy Riziki Hopkins (Civil Application No. 194 of 2008)
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.