Wakilii

Batambuze v Ataro (Civil Application 512 of 2024)

Court of Appeal · [2025] UGCA 29 · 2025 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application before a single Justice of Appeal for an order to stay execution of a High Court decree pending appeal
Decision
Stay of execution of the High Court decree granted pending determination of the appeal; applicant not directed to furnish security for due performance

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Holding

On an application for a stay of execution pending appeal, the Court of Appeal (single Justice) held that the applicant met the principles in Theodore Ssekikubo v Attorney General: he had an appeal with a likelihood of success that could be rendered nugatory, would suffer substantial loss because execution had already commenced and a refund would be onerous if the appeal succeeded, and had acted without undue delay. The Court held that execution is a process, not an event, and that an order for security for due performance is not a mandatory requirement but a discretionary rule of practice. As the respondent had already recovered and sold the suit property, no security was ordered. The stay was granted.

Facts

The respondent obtained judgment against the applicant and Richard Onen in Civil Suit No. 83 of 2010 concerning land comprised in LRV 59 Folio 19 Plot 3 Circular Road, and was awarded UGX 200,000,000 in general damages. The applicant had purchased the property from Onen, the respondent's brother. After obtaining judgment the respondent took possession, transferred the certificate of title into her name and sold the land to a third party who began constructing a hospital. The applicant lodged a notice of appeal and a memorandum of appeal seeking, among other things, a retrial and a challenge to the remedies granted. An earlier application for stay in the High Court had been dismissed with costs. The respondent had filed a bill of costs and a notice to show cause why execution should not issue had been served, indicating that execution had commenced. The applicant sought a stay pending Civil Appeal No. 554 of 2023, contending he would suffer substantial loss and the appeal would be rendered nugatory. The respondent argued the matter was moot and any loss reparable.

Issues

  1. Whether the applicant satisfied the conditions for the grant of an order staying execution of the High Court decree pending the determination of the appeal.
  2. Whether the applicant should be ordered to furnish security for the due performance of the decree as a condition for the grant of a stay.

Orders

  • Execution of the decree in Civil Suit No. 83 of 2010 is hereby stayed pending the determination of Civil Appeal No. 564 of 2023.
  • Costs of the application shall abide the outcome of the appeal.

Key headnotes

Civil Procedure — Stay of Execution Pending Appeal — Conditions for Grant
An order staying execution pending appeal is granted on the established principles that the applicant will suffer irreparable damage or the appeal be rendered nugatory if a stay is not granted, that the appeal has a likelihood of success or a prima facie case of the right to appeal, and (where those are not established) that the balance of convenience favours a stay, the application having been brought without undue delay.
Civil Procedure — Stay of Execution — Substantial Loss Where Refund Onerous
Where execution has commenced but is not yet complete, an applicant will suffer substantial loss if a stay is refused, because if the appeal succeeds after execution it would be onerous for the applicant to commence recovery measures to procure a refund.
Civil Procedure — Execution — Execution is a Process, Not an Event
Execution is a process and not an event; once the process has commenced, for example through the filing and taxing of a bill of costs, a contention that a notice to show cause is old does not defeat an application for a stay.
Civil Procedure — Stay of Execution — Security for Due Performance Discretionary
There is no requirement under the Rules for an applicant to deposit security for due performance of a decree before the Court can grant a stay under rule 6(2)(b); the imposition of such security is only a discretionary rule of practice based on case law, and need not be ordered where the respondent has already recovered the subject matter.

Legislation cited (12)

  • Constitution of the Republic of Uganda 1995 art.132(1) & (2)
  • Judicature Act s.4
  • Judicature Act s.6
  • Judicature Act s.7
  • Judicature Act s.8
  • Judicature Act s.10
  • Civil Procedure Act s.66
  • 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.42(1)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.43(1) & (2)
  • Judicature (Supreme Court Rules) Directions S.I. 13-10 r.6(2)(b)

Cases cited (4)

  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Application No. 18 of 1990)
  • Hon. Theodore Ssekikubo & 3 others v Attorney General & 4 others [2013] UGSC 21
  • Osman Kassim Ramathan v Century Bottling Company Ltd (Supreme Court Civil Application No. 35 of 2019)
  • Joel Kato & Another v Nuulu Nalwoga (Supreme Court Civil Application No. 11 of 2011) [2013] UGSC 15
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.