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Natukunda Washaba Ruth v John Muhaise Bikalemesa (Civil Application No. 103 of 2025)

Court of Appeal · [2025] UGCA 233 · 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 and temporary injunction pending appeal
Decision
Stay of execution and temporary injunction granted pending the hearing of the appeal

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Holding

Sitting as a single Justice, the court granted a stay of execution and a temporary injunction pending appeal. Applying the Ssekikubo principles, it found the applicant's appeal arguable (the trial judge's refusal to set aside the ex parte decree), and that loss of the disputed land could not be adequately compensated in damages, rendering the appeal nugatory if execution proceeded. The balance of convenience favoured the applicant, who claimed possession, over the respondent. The respondent's challenge to the competence of the notice of appeal for being filed out of time was held to be a matter for the full bench and did not, at the stay stage, bar the application.

Facts

The High Court delivered a ruling in Miscellaneous Application No. 0259 of 2021 in favour of the respondent, declining to set aside an ex parte decree in Civil Suit No. 178 of 2017 concerning land comprised in Kyadondo Block 195 Plot 2348 at Kyanja. The applicant, aggrieved, filed a notice of appeal and requested the record of proceedings. The respondent commenced execution and taxation of costs against the applicant. The applicant averred she is the owner and has been in possession of the suit land since 2015, despite alleged attempts at unlawful eviction and trespass, and that the impugned decision placed her at risk of eviction, dispossession and alienation of the land. The respondent contended he is in full possession following the applicant's expulsion, that the notice of appeal was filed out of time without leave rendering any appeal incompetent, and that the applicant had withdrawn related applications and was guilty of dilatory conduct.

Issues

  1. Whether the applicant established the conditions for an order of stay of execution and a temporary injunction pending the determination of her appeal.
  2. Whether the application is incompetent on the ground that the notice of appeal was filed out of time without leave, such that no appeal lies.
  3. Whether the application should be entertained by the Court of Appeal first without having been made to the High Court.

Orders

  • A stay of execution of the decision and orders of the High Court is granted pending disposal of the applicant's appeal.
  • A temporary injunction is granted restraining the respondent from entry, dispossession, transfer or alienation of the suit land pending disposal of the appeal.
  • Costs for this application shall be in the cause.

Key headnotes

Civil Procedure — Stay of Execution — Conditions for grant pending appeal
An applicant for a stay of execution must establish that the appeal has a likelihood of success or a prima facie right to appeal, that irreparable damage will be suffered or the appeal rendered nugatory if a stay is refused, and, where these are not established, that the balance of convenience lies in the applicant's favour.
Civil Procedure — Stay of Execution — Arguable appeal test
At the stay stage the test is not whether the appeal ought ultimately to succeed on the merits, but whether it raises triable or arguable issues that are not frivolous or vexatious; the court should not delve into the merits of the appeal.
Land & Property — Irreparable harm — Loss of land not compensable in damages
Land is a unique and often irreplaceable asset; the loss of land through execution, disposal or alienation pending appeal constitutes irreparable damage that cannot be adequately compensated by an award of damages, and a stay is appropriate to preserve the subject matter of the appeal.
Civil Procedure — Competence of notice of appeal — Determination reserved to full bench
An objection that a lodged notice of appeal is incompetent for being filed out of time is a matter for the full bench, whether on the merits of the appeal or on an application to strike it out, and does not at the stay stage prevent the court from proceeding to consider an application for a stay of execution.

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.76(2)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.82
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.42
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.5
  • Civil Procedure Rules Order 9 r.27

Cases cited (11)

  • Hon. Theodore Ssekikubo & Ors v Attorney General & Ors (Constitutional Application No. 6 of 2013)
  • China Henan Company Limited v Justus Kyobahwa (Civil Application No. 700 of 2021)
  • Sserubiri & Others v Salama & 2 Others (Civil Application No. 285 of 2023)
  • Beeline Travelcare Limited vs Finance Trust Bank Limited
  • Devani v Bhadresa & Another (Civil Appeal No. 27 of 1971)
  • Shiv Construction v Endesha Enterprises Ltd (Civil Appeal No. 34 of 1992)
  • Robert Kavuma v Hotel International (Civil Appeal No. 8 of 1990)
  • Industrial Development Corporation of South Africa Ltd v Aya Investments (U) Limited (Civil Application No. 1104 of 2023)
  • Semakula Musoke & Another v Nabamba & 2 Others (Civil Application No. 22 of 2019)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
  • Mukiibi v Hassan Evangelism Mission & Ors (Civil Appeal No. 287 of 2017)
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.