Wakilii

Nakibus J. Lakara v Akim Sondit Musiwa (Miscellaneous Application 420 of 2019)

Court of Appeal · [2025] UGCA 232 · 2025 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal, brought directly in the Court of Appeal
Decision
Stay of execution granted, conditional on the applicant depositing UGX 10,000,000 as security for due performance within 30 days

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Holding

The Court of Appeal overruled all three preliminary objections, holding that the supplementary affidavit could stand as the procedural lapse caused no prejudice, that minimal late service following a change of advocates was excusable under Article 126(2)(e), and that Rule 42(2) permitted it to entertain the application without prior recourse to the High Court. On the merits, the court found the applicant had filed a notice of appeal, that imminent eviction and demolition would cause irreparable loss rendering the appeal nugatory, that the application was made without delay, and that the appeal raised serious questions. A stay was granted conditional on a UGX 10,000,000 deposit as security for due performance.

Facts

The respondent sued the applicant in the Chief Magistrate's Court at Mbale seeking vacant possession of land at Plot 14, Busoga Lane, Mbale. The suit was dismissed, but on appeal (Civil Appeal No. 172 of 2014) the High Court at Mbale allowed the appeal, declared the respondent the rightful owner, and directed the applicant to vacate within 30 days of the judgment delivered on 3 December 2019. The applicant filed a notice of appeal on 11 December 2019 and this application for stay on 30 December 2019. The applicant and his family had occupied the suit property as their home for some 37 years. The respondent had commenced execution, obtaining an ex parte eviction and demolition order from the Registrar on 9 December 2024. The applicant feared imminent eviction and demolition would render his intended appeal nugatory.

Issues

  1. Whether the applicant's supplementary affidavit, filed without leave of court, should be struck out.
  2. Whether the application should be dismissed for having been served on the respondent out of time.
  3. Whether the application was prematurely filed in the Court of Appeal contrary to the requirement to first apply to the High Court.
  4. Whether the application discloses grounds for the grant of a stay of execution pending appeal.

Orders

  • The first preliminary objection (supplementary affidavit) is overruled.
  • The second preliminary objection (late service) is overruled.
  • The third preliminary objection (premature filing) is overruled.
  • A stay of execution is granted on condition that the applicant deposits UGX 10,000,000 within 30 days from the date of the ruling as security for due performance of the decree.
  • The costs of this application abide the outcome of the main appeal.

Key headnotes

Civil Procedure — Stay of Execution — 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 the appeal has a likelihood of success.
Civil Procedure — Stay of Execution — Sufficiency of Notice of Appeal
A valid notice of appeal is a sufficient expression of the intention to appeal and satisfies the preliminary condition under Rule 6(2)(b); delay in prosecuting the appeal is a distinct matter that does not invalidate the notice itself.
Civil Procedure — Stay of Execution — Recourse to High Court — Rule 42
Although Rule 42(1) generally requires that an application be made first in the High Court, Rule 42(2) empowers the Court of Appeal to entertain an application under Rule 6(2)(b) without prior recourse to the High Court where the interests of justice and the safeguarding of the right of appeal so require.
Civil Procedure — Stay of Execution — Security for Due Performance
There is no requirement under the rules for an applicant to deposit security for due performance of a decree before the court can exercise its powers under Rule 6(2)(b); the court need only exercise its discretion as it considers just.
Civil Procedure — Affidavits — Cure of Procedural Irregularity
A procedural irregularity, such as filing a supplementary affidavit without leave of court, may be waived or cured where the interests of justice require it and there is no prejudice to the opposing party, the mistake of counsel not being visited on the litigant.
Civil Procedure — Stay of Execution — Substantial Loss and Nugatory Appeal
Where imminent execution by eviction and demolition would irreparably affect an applicant's proprietary interest in property, the appeal would be rendered nugatory, and the substantial-loss condition for a stay of execution is satisfied; the purpose of a stay being to preserve the status quo and protect the right of appeal.

Legislation cited (12)

  • Judicature Act Cap 13 s.10
  • Judicature Act Cap 13 s.12
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.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.42(1)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.42(2)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.43
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.44(2)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.44(3)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.50(1)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.103(1)
  • Constitution of Uganda 1995 art.126(2)(e)

Cases cited (9)

  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 03 of 2014)
  • Attorney General v East African Law Society and Another (EACJ Application No. 1 of 2013)
  • Banco Arabe Espanol v Bank of Uganda [1999] 1 EA 22
  • Olok Francis v William Pasha (Court of Appeal Civil Application No. 059 of 2015)
  • National Enterprise Corporation v Mukisa Foods (Miscellaneous Civil Application No. 7 of 1998)
  • Francis Hansio Micah v Nuwa Walakira (Supreme Court Civil Application No. 9 of 1990)
  • Margaret Kato and Another v Nuulu Nalwoga (Supreme Court Civil Miscellaneous Application No. 11 of 2011)
  • Dr. Ahmed Muhamed Kisule v Greenland Bank (Court of Appeal Civil Application No. 10 of 2010)
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.