Wakilii

Kafu Sugar Limited & Another v Kiryandongo Sugar Limited & Another (Civil Application 607 of 2024)

Court of Appeal · [2025] UGCA 41 · 2025 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by Notice of Motion to a single Justice of the Court of Appeal for a stay of execution pending the hearing of a civil appeal
Decision
Application granted; unconditional stay of execution ordered until determination of the appeal

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

A single Justice overruled a preliminary objection that the application was incompetent for non-service, holding that the non-service arose from the court's own inadvertence in failing to assign a hearing date, so Order 5 rule 1(2) could not defeat it. Applying the conjunctive test in Theodore Ssekikubo (diligent notice of appeal, triable issues with likelihood of success, irreparable damage, and balance of convenience), the court found all conditions satisfied: garnishment of colossal sums would cripple the applicant sugar factory. Following Joel Kato v Nuulu Nalwoga, security for due performance was held to be only a rule of practice and not mandatory. An unconditional stay of execution was granted.

Facts

The applicants were the unsuccessful parties in Civil Suit No. 55 of 2017 in the High Court at Masindi, which challenged the manner in which the respondents obtained a lease over land in the Bunyoro Ranching Scheme, Kiryandongo District. The suit was dismissed with costs, and the applicants appealed (Civil Appeal No. 307 of 2023). The respondents taxed their bill of costs and commenced execution, garnishing about UGX 360,000,000 from the second applicant's accounts, with a further decree nisi pending to recover the balance of taxed costs amounting to over UGX 1.2 billion. The applicants' earlier interim and main applications for stay of execution in the High Court were dismissed with costs. They then applied to the Court of Appeal for a stay of execution pending the appeal, contending the appeal would be rendered nugatory and that continued garnishment would cripple the first applicant, a sugar factory.

Issues

  1. Whether the application for stay of execution was incompetent for non-service of court process within the prescribed time.
  2. Whether the applicants satisfied the conditions for the grant of an order of stay of execution pending appeal.
  3. Whether the applicants were required to furnish security for due performance of the decree as a precondition for a stay.
  4. What remedies are available to the parties.

Orders

  • An order of stay of execution is granted until the determination of Civil Appeal No. 307 of 2023.
  • Costs of this application shall abide the result of the appeal.

Key headnotes

Civil Procedure — Service of Process — Non-service caused by the court's own inadvertence
Where the failure to serve an application within the statutory period under Order 5 rule 1(2) of the Civil Procedure Rules results from the court's own inadvertence in not assigning a hearing date, and the respondent suffers no injustice, the court may invoke its inherent powers to overrule a preliminary objection of non-service rather than dismiss the application.
Civil Procedure — Stay of Execution Pending Appeal — Conditions (conjunctive test)
An applicant for a stay of execution pending appeal must satisfy, conjunctively, that the notice of appeal was diligently lodged, that the intended appeal raises triable issues with a strong likelihood of success, that the applicant will suffer irreparable damage if the stay is refused, and that the balance of convenience favours the applicant.
Civil Procedure — Stay of Execution — Likelihood of Success — Court not to pre-empt the appeal
At the stay stage the court does not make definitive findings of fact or law on the merits; it suffices that the appeal is arguable and not frivolous, and the court must avoid pre-empting matters reserved for the full bench hearing the appeal.
Civil Procedure — Stay of Execution — Irreparable Damage
Irreparable injury does not mean that the injury is physically incapable of repair, but that it is substantial or material and cannot be adequately atoned for in damages; garnishment of colossal sums that would cripple the operations of a company and may put it out of business constitutes such irreparable injury.
Civil Procedure — Stay of Execution — Security for Due Performance not mandatory
The furnishing of security for due performance of a decree is not a mandatory precondition for the grant of a stay of execution but only a rule of practice based on case law; under Rule 6(2)(b) the court may order a stay on such terms as it considers just, and each case is decided on its own facts.

Legislation cited (12)

  • Civil Procedure Act s.16
  • Civil Procedure Act s.98
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 rule 2(2)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 rule 6(2)(b)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 rule 18(1)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 rule 43
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 rule 44
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 rule 53(2)
  • Civil Procedure Rules Order 5 rule 1(2)
  • Civil Procedure Rules Order 5 rule 2
  • Civil Procedure Rules Order 5 rule 3
  • Constitution of Uganda Article 126(2)(e)

Cases cited (18)

  • Edison Kanyabwera v Pastori Tumwebaze (Civil Appeal No. 6 of 2004)
  • Lawrence Musitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
  • Theodore Ssekikubo and 3 others v Attorney General and 4 others (Constitutional Application No. 6 of 2013)
  • Gashumba Maniraguha v Sam Nkundiye (Civil Application No. 24 of 2015)
  • E.L.T. Kiyimba Kaggwa V. Hajji Abdu Nasser Katende [1985] HCB 43
  • Nsabimana v Jokana and another (Civil Application No. 222 of 2023)
  • Ogwen Merdard Fredrick v Bazanya Justine (Civil Application No. 523 of 2024)
  • Remegio Obwana v The Registered Trustees of Tororo Diocese (Civil Reference No. 69 of 2020)
  • Lubega Moses v Nassimbwa Sylvia (Civil Application No. 122 of 2024)
  • P.K. Ssengendo v Busulwa Lawrence and another (Civil Application No. 207 of 2014)
  • DFCU Bank Ltd v Dr. Ann Persis Nkate Lussejje (Civil Application No. 29 of 2003)
  • Haruna Sentongo v I & M Bank Ltd (Civil Application No. 773 of 2023)
  • Byamukama Fred v Kyampagi and 3 others (Civil Application No. 289 of 2024)
  • Hamir Khunti v Uganda Muslim Supreme Council (Civil Application No. 253 of 2024)
  • Haruna Enterprises (U) Ltd and another v Diamond Trust Bank (U) Limited (Civil Application No. 1271 of 2023)
  • Joel Kato and Margaret Kato v Nuulu Nalwoga (Civil Application No. 4 of 2012)
  • Geila V Cassman Brown & Co. [1973] E.A.358
  • Stanely Kang'ethe Kinyanjui V. Tony Ketter and 5 others [2013] KLR
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.