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Milton Obote Foundation and Others v Hon. James Michael Akena (Civil Application No. 69 of 2023)

Court of Appeal · [2025] UGCA 340 · 2025 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for stay of execution and/or injunction pending the determination of a civil appeal
Decision
Application dismissed on a preliminary objection; merits not considered

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Holding

The Court upheld the respondent's preliminary objection and dismissed the application without considering its merits. Under Rule 42(1) of the Court of Appeal Rules, an application that may be made in either the High Court or the Court of Appeal must first be made in the High Court. The exception in Rule 42(2) applies only to intending appellants who have not yet filed their appeals; because the applicants' appeal had already been filed in 2019, the exception did not avail them. The applicants conceded that no application for stay had ever been filed in the High Court, and they showed no danger of delay or special or rare circumstances justifying a first-instance hearing in the Court of Appeal.

Facts

The applicants obtained an adverse High Court ruling in Company Cause No. 44 of 2017, which held that the termination of the respondent's membership of the Milton Obote Foundation was of no effect and that he remained a member, and awarded him 70% of taxed costs. The applicants filed Civil Appeal No. 314 of 2019 against that ruling, which remained pending. Concerned that enforcement of the High Court orders, and the respondent's reinstatement, would render the appeal nugatory and create insecurity at Uganda House affecting rental income, the applicants brought this application directly in the Court of Appeal seeking a stay of execution and, alternatively, an injunction restraining the respondent from enforcing the High Court orders pending the appeal. They had not first filed any such application in the High Court.

Issues

  1. Whether an application for stay of execution and/or injunction pending appeal must first be filed in the High Court before being brought to the Court of Appeal.
  2. Whether the exception under Rule 42(2) of the Court of Appeal Rules availed the applicants who had already filed their appeal.

Orders

  • The preliminary objection is upheld.
  • The application is dismissed.
  • Costs of this application shall abide the outcome of the appeal.

Key headnotes

Civil Procedure — Stay of Execution Pending Appeal — Proper Forum — Rule 42(1) Court of Appeal Rules
Where an application may be made either in the Court of Appeal or in the High Court, it must first be made in the High Court; an application for stay of execution pending appeal must accordingly be filed in the High Court before resort to the Court of Appeal.
Civil Procedure — Stay of Execution — Rule 42(2) Exception — Limited to Intending Appellants Who Have Not Yet Filed an Appeal
The exception in Rule 42(2) permitting an application to be entertained first in the Court of Appeal to safeguard the right of appeal applies only to intending appellants who have not yet filed their appeals; once the appeal has been filed, the exception does not apply.
Civil Procedure — Stay of Execution — Special Circumstances Required to Invoke Court of Appeal at First Instance
An application for stay may be brought first in the Court of Appeal only where the High Court refuses jurisdiction, where its disposal would entail substantial delay, or where other special and rare circumstances exist and it is in the interests of justice; the applicant bears the burden of establishing such circumstances.
Civil Procedure — Preliminary Objection — Effect of Upholding — Merits Not Considered
Where a preliminary objection going to the competence of an application is upheld, the application fails and the court will not proceed to consider its merits.

Legislation cited (4)

  • Judicature (Court of Appeal Rules) Directions (SI 13-10) r.42(1)
  • Judicature (Court of Appeal Rules) Directions (SI 13-10) r.42(2)
  • Judicature (Court of Appeal Rules) Directions (SI 13-10) r.6(2)(b)
  • Judicature (Court of Appeal Rules) Directions (SI 13-10) r.72

Cases cited (10)

  • Lukwago Erias v Attorney General & Kampala Capital City Authority (Supreme Court Civil Application No. 6 of 2014)
  • Bismillah Trading Ltd v Falcon Estates Ltd (Civil Application No. 13 of 2015)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Application No. 18 of 1990)
  • Augustine Mukiibi v Hosanna Evangelistic Mission & Others (Civil Appeal No. 295 of 2017)
  • E.L.T Kiyimba Kaggwa v Hajji Abdu Nasser Katende (1985) HCB 43
  • American Cyanamid Co v Ethicon Ltd [1975] All ER 504
  • J.K Ssentongo v Shell (U) Ltd [1995] III KLR 1
  • Somali Democratic Republic v Anoop S. Sundderlal Treon (Supreme Court Criminal Appeal No. 11 of 1988)
  • P.K Sengendo v Busulwa & Another (Civil Application No. 207 of 2014)
  • Uganda Law Society & Eddie Nangulu v Mugisha Hashim & 2 Others (Civil Application No. 99 of 2025)
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.