Wakilii

William Kaija and Others v Kasoya Justine and Another (Civil Application No. 563 of 2024)

Court of Appeal · [2025] UGCA 365 · 2025 Application Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion for a stay of execution of a High Court decree (alternatively a temporary injunction) pending the hearing of a civil appeal in the Court of Appeal
Decision
Stay of execution granted pending the appeal, conditional on the applicants depositing UGX 20,000,000 security for due performance into court within thirty days; failing which the order abates

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Holding

On an application for stay of execution pending a land appeal, the Court held that the applicants had shown the appeal was not frivolous, that substantial and irreparable loss would result from execution given their long occupation of the suit land, that a serious threat of execution existed, and that the balance of convenience and greater hardship favoured them. The relevant pillars (ii, iv and vii) and the first pillar were satisfied. The Court nonetheless exercised its discretion to require security for due performance, ordering the applicants to deposit UGX 20,000,000 into court within thirty days, failing which the stay would abate. The application was accordingly allowed subject to that condition.

Facts

The respondents are administrators of the estate of the late Gideon Musana Kacwere, the registered proprietor of the suit land (FRV 29 Folio 2, Mwenge Block 122, Plot 1 Khooka, approximately 641 acres). The father of the 1st to 3rd applicants was a recognised kibanja occupant of about 11 acres on the suit land. The respondents complained that the 1st to 3rd applicants overstepped their kibanja by roughly 135 acres and developed land without consent. The High Court found the 1st to 3rd applicants entitled to a kibanja of only 15 acres and in trespass beyond it, and found the 4th applicant in trespass of another portion. The respondents were granted vacant possession, and the applicants were condemned in general and exemplary damages and costs. The applicants filed an appeal and, contending the suit was time-barred and that they were bonafide occupants of the whole land, applied to stay execution while the respondents pursued execution and visited the land with surveyors.

Issues

  1. Whether the applicants satisfied the conditions for an order staying execution of the High Court decree pending the hearing of their appeal.
  2. Whether, in the alternative, a temporary injunction should issue restraining the respondents from interfering with the status quo of the suit land pending appeal.
  3. Whether the applicants should be required to deposit security for due performance of the decree as a condition of any stay.

Orders

  • The application for stay of execution is allowed subject to the conditions set out in the ruling.
  • The applicants are ordered to deposit UGX 20,000,000 as security for due performance of the High Court decree, to be paid into the Court of Appeal within thirty days of the ruling.
  • Should the applicants fail to deposit the said security within thirty days, this order shall automatically abate.
  • The costs of the application shall abide the final outcome of the appeal.

Key headnotes

Civil Procedure — Stay of Execution — Duty of the Appellate Court to Preserve the Appeal
Where an unsuccessful party is exercising an unrestricted right of appeal, the court has a duty to make such orders for staying proceedings on the judgment as will prevent the appeal from being rendered nugatory, so that the appellate court can fully review the issues without being hindered by actions that prematurely enforce or nullify the original judgment.
Civil Procedure — Stay of Execution — Conditions to be Satisfied
An applicant for a stay of execution pending appeal must show a pending appeal, a likelihood of success, that substantial loss may result unless the stay is granted, a serious or imminent threat of execution that would render the appeal nugatory, no unreasonable delay in applying, preparedness to furnish security for due performance, and that refusal would inflict greater hardship than it would avoid; the grant or refusal remaining a discretionary matter.
Civil Procedure — Stay of Execution — Likelihood of Success Not a Determination of Merits
In assessing the likelihood of success the court does not inquire into the merits of the intended appeal; it need only determine whether, prima facie, there exist grounds of appeal that merit serious consideration, the applicant being expected to show only that the appeal is not frivolous and vexatious.
Civil Procedure — Stay of Execution — Meaning of Substantial Loss
Substantial loss does not denote any particular size or amount but refers to any loss, great or small, that is of real worth or value as distinguished from merely nominal loss; it must mean something in addition to and different from the ordinary loss to which every judgment debtor is necessarily subject on losing a case.
Civil Procedure — Stay of Execution — Discretion to Order Security for Due Performance
The requirement of a deposit of security for due performance of the decree is discretionary and is determined by the wisdom of each court and the facts of each case; the court may impose a reasonable sum as security as a condition of granting a stay, having regard to the value of the property in issue, the taxed costs and the other remedies granted below.

Legislation cited (6)

  • Judicature Act s.12
  • Judicature (Court of Appeal Rules) Directions SI 13-11 r.2(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-11 r.6(2)(b)
  • Judicature (Court of Appeal Rules) Directions SI 13-11 r.43
  • Judicature (Court of Appeal Rules) Directions SI 13-11 r.44(1)
  • Judicature (Court of Appeal Rules) Directions SI 13-11 r.76

Cases cited (13)

  • Kalyeboga Appolinaris v Hussein Muhammed (Civil Application No. 74 of 2023)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Kyambogo University v Prof. Isiah Oundo Ndiege (Civil Application No. 341 of 2013)
  • E.L.T Kiyimba Kagwa v Hajji Abdu Nasser Katende [1985] HCB 48
  • Uganda Electricity Transmission Company Ltd v Citi Bank Uganda & 2 Others (HCMA No. 1397 of 2022)
  • Solome Tibarirane v National Housing & Construction Co. Ltd [2007] HCB 109
  • SPDC (Nig) Ltd v Amadi & Ors (2001) LPELR-3204
  • Okello Donansiano & 2 Ors v Kiboto Malan Dokomo Julius (Civil Application No. 24 of 2023)
  • Krone Uganda Limited v Kerilee Investment Ltd (Civil Application No. 63 of 2020)
  • Albert George Gitta & 2 Others v Nanyonga & Others (Civil Appeal No. 693 of 2022)
  • Osman Kassim v Centenary Bottling Company Ltd (Civil Appeal No. 34 of 2019)
  • Tropical Commodities Suppliers Ltd & Ors v International Credit Bank Ltd (in Liquidation) [2004] 2 EA 331
  • Tanzanian Cotton Marketing Board v Cogecot Cotton Co. SA (1995-1998) EA 312
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.