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

Court of Appeal · [2025] UGCA 231 · 2025 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application before a single Justice of the Court of Appeal for a stay of execution pending the determination of Civil Appeal No. 1106 of 2024

Decision

Stay of execution granted pending the final determination of Civil Appeal No. 1106 of 2024

The full judgment

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Holding

On an application for a stay of execution pending appeal, the single Justice held that the applicant had satisfied the established conditions: the pending appeal was not frivolous and raised arguable triable issues (double compensation, locking out of evidence, liability framed as trespass versus negligence); the execution process had commenced through the filing and intended taxation of a bill of costs, constituting an imminent threat; the application was brought without undue delay; and the applicant would suffer substantial, irreparable loss if compelled to build and later demolish a perimeter wall. The balance of convenience favoured preserving the status quo. The Court granted a stay of execution pending determination of the main appeal, costs in the cause.

Facts

The respondent obtained judgment against the applicant in the High Court (Land Division) in Civil Suit No. 1535 of 2023, which included awards of general and special damages and an order requiring the applicant to construct a perimeter/retainer wall on his land. The applicant lodged a notice of appeal and a memorandum of appeal challenging the whole judgment (Civil Appeal No. 1106 of 2024). His earlier application for a stay before the High Court (Misc. Application No. 3305 of 2024) was dismissed. The respondent then commenced execution by extracting a decree and filing bills of costs for taxation (Taxation Applications No. 443 of 2024 and No. 81 of 2025) and invited the applicant to a pre-taxation meeting. The applicant contended that complying with the order to build the wall, in a space gazetted as a drainage channel under KCCA plans, would cause substantial loss requiring later demolition if the appeal succeeded, and offered his certificate of title as security.

Issues

Whether the applicant satisfied the conditions for the grant of a stay of execution pending the determination of his appeal.

Orders

An order for stay of execution is issued pending the final determination of the main appeal (Civil Appeal No. 1106 of 2024).
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 establish that the appeal has a likelihood of success or a prima facie case of a right to appeal, that he will suffer irreparable damage or the appeal will be rendered nugatory if the stay is refused, that the balance of convenience favours the grant, and that the application was instituted without delay.

Civil Procedure — Stay of Execution — Execution as a Process — Imminent Threat

Execution is a process and not a single event; the process is commenced by the filing of a bill of costs, and taxation of costs is one of its steps, so that the filing of a bill of costs for taxation establishes an imminent threat of execution for the purposes of a stay application.

Civil Procedure — Stay of Execution — Substantial Loss — Meaning

Substantial loss does not denote 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.

Civil Procedure — Stay of Execution — Arguable Appeal — Standard

For a stay of execution, the appeal need not be one that will or must succeed; it suffices that the appeal raises reasonable triable issues and can be argued, and the court must avoid usurping the role of the bench that will hear the intended appeal.

Legislation cited (7)

Judicature (Court of Appeal Rules) Directions SI 13-10 r.6(2)(b)
Judicature (Court of Appeal Rules) Directions SI 13-10 r.2(2)
Judicature (Court of Appeal Rules) Directions SI 13-10 r.76
Judicature (Court of Appeal Rules) Directions SI 13-10 rr.42, 43, 46, 47
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 & Others v Attorney General & Others (Constitutional Application No. 6 of 2013)
Osman Kassim Ramathan v Century Bottling Company Ltd (Civil Application No. 35 of 2019)
Registered Trustees of the Hindu Union v Kagoro Epimac & 2 Others (Civil Application No. 304 of 2017)
Robert Kibagendi Otachi & Another v Housing Finance Co. of Kenya Ltd (Civil Application No. 257 of 1996)
Tropical Commodities Supplies Ltd & 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.