Wakilii

Kisegerwa Micheal and Kazibwe Haruna v Moses Kityo and Kibirige Charles [2025] UGCA 327

Court of Appeal · 2025 Application Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Omnibus application for stay of execution pending appeal and leave to adduce additional evidence on appeal
Decision
Application partly allowed: stay of execution granted pending Civil Appeal No. 0045 of 2022; prayer for admission of additional evidence dismissed

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Holding

The Court of Appeal held that the applicants satisfied the four conditions for a stay of execution — an arguable appeal, irreparable damage (eviction and demolition of structures on the suit land that could not be atoned by damages, rendering the appeal nugatory), a balance of convenience in their favour, and no unreasonable delay — and granted a stay pending the appeal. Applying Rule 30(1)(b) and Ladd v Marshall, however, it refused leave to adduce additional evidence (the alleged full Will and an account statement) because that evidence was available to the applicants at trial and could have been obtained with reasonable diligence, and an omitted third witness would not affect the Will's validity. The application was partly allowed.

Facts

The dispute arises from Civil Suit No. 236 of 2018 in the High Court (Family Division), concerning the estate and a Will of the late Yunia Nanfuka Birabwa and land occupied by the applicants. On 30 November 2021, Hon. Justice Dr Joseph Murangira gave judgment against the applicants, finding the Will they relied on to be forged and granting letters of administration of the estate to the respondents and others. The applicants, who occupy the suit land with developments and rental units, filed a notice of appeal and lodged Civil Appeal No. 0045 of 2022. After their High Court stay application was dismissed on 11 March 2022, they brought this application on 28 March 2022 seeking a stay of execution and leave to adduce additional evidence — a properly photocopied "full" copy of the Will said to show a third witness omitted by their former lawyers, and an account statement said to show six years' occupation of the land. The respondents had issued a notice to show cause why execution should not issue, a notice of eviction and demolition, and had directed tenants on the suit land to pay rent to them.

Issues

  1. Whether there are sufficient grounds for a stay of execution in Civil Suit No. 236 of 2018 pending the determination of Civil Appeal No. 0045 of 2022.
  2. Whether there is sufficient cause to warrant the admission of additional evidence on appeal.

Orders

  • The application is partly allowed.
  • Stay of execution of the judgment, decree or orders in Civil Suit No. 236 of 2018 granted pending the determination of Civil Appeal No. 0045 of 2022.
  • The prayer for admission of additional evidence on appeal is dismissed.
  • Costs of this application shall abide the outcome of the appeal.

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 right of appeal, that the applicant will suffer irreparable damage or the appeal will be rendered nugatory if a stay is not granted, where the balance of convenience lies if the first two conditions are not established, and that the application was instituted without unreasonable delay.
Civil Procedure — Stay of Execution — Irreparable Damage and Nugatory Appeal
Where execution would result in the eviction of occupants and the demolition of structures on the suit land, the resulting loss cannot be atoned by damages and the appeal, if successful, would be rendered nugatory; a stay is therefore justified to preserve the status quo and the substance of the appeal.
Civil Procedure — Additional Evidence on Appeal — Sufficient Reason
Under Rule 30(1)(b) of the Court of Appeal Rules and the principles in Ladd v Marshall, an appellate court may admit additional evidence only in exceptional circumstances where the evidence could not, with reasonable diligence, have been obtained for use at trial, is relevant to the issues, is credible, and would probably influence the result; evidence that was available to or within the knowledge of a party at trial will not be admitted.
Succession & Estates — Wills — Number of Attesting Witnesses
A Will is valid where it is witnessed by at least two persons; the omission of a third witness's name does not render the Will invalid.

Legislation cited (10)

  • Constitution of the Republic of Uganda 1995 art.126(2)(e)
  • Civil Procedure Act, Cap. 71 (now Cap. 282) s.96
  • Civil Procedure Act, Cap. 71 (now Cap. 282) s.98
  • 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)
  • Judicature (Court of Appeal Rules) Directions, S.I. 13-10 r.30(1)
  • 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(1)
  • Judicature (Court of Appeal Rules) Directions, S.I. 13-10 r.44

Cases cited (14)

  • Baguma Patrick v Sanyu Phiona (Civil Application No. 452 of 2023)
  • Ssekikubo and Others v Attorney General and Anor (Constitutional Application No. 6 of 2013)
  • G. Afro v Uganda Breweries Ltd (Supreme Court Civil Application No. 12 of 2008)
  • China Henan International Cooperation Group Co. Ltd v Justus Kyabahwa (Civil Application No. 100 of 2021)
  • Junaco (T) Limited and 2 Others v DFCU Bank Ltd (Civil Application No. 145 of 2023)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Batambuze Majid v Joyce Ataro (Civil Application No. 572 of 2024)
  • City Council of Kampala v Donozio Musisi Sekyaya (Civil Application No. 3 of 2000)
  • National Enterprise Corporation v Mukisa Foods (Miscellaneous Civil Application No. 7 of 1998)
  • Francis Hansio Micar v Nuwa Walakira (Supreme Court Civil Application No. 9 of 1990)
  • General Parts (U) Ltd v Kunnal Pradp Karia (Civil Application No. 266 of 2013)
  • Ladd v Marshall [1954] 1 WLR 1489
  • Karmali Tarmohamed and Anor v T.H. Lakhani and Company [1958] EA 567
  • Anifa Bangirana Kawooya v National Council for Higher Education (Supreme Court Miscellaneous Application No. 8 of 2013)
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