Katereine v Asiimwe (Civil Application 573 of 2024)

Court of Appeal · [2025] UGCA 47 · 2025 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to a single Justice of the Court of Appeal for stay of execution pending appeal

Decision

Application for stay of execution dismissed

The full judgment

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Holding

A single Justice of the Court of Appeal dismissed an application for stay of execution pending appeal. Applying the principles restated in Theodore Ssekikubo, the court held the applicant had not established a prima facie case with a likelihood of success: beyond the notice of appeal he supplied no memorandum of appeal or evidence substantiating the alleged mistake of counsel. He also failed to show irreparable damage, since what the respondent sought to enforce were ascertainable costs and no other loss was proved. Having failed both conditions, the court found it unnecessary to consider the balance of convenience.

Facts

The applicant and respondent's marriage broke down, leading to Divorce Cause No. 112 of 2016 filed by the respondent. After the applicant's counsel cross-examined the respondent on 1 December 2020, the hearing was adjourned. The cause was later re-fixed and proceeded in the absence of the applicant and his counsel, who had been served at the applicant's own direction, and the divorce was determined ex parte. The applicant's Miscellaneous Application No. 983 of 2022 to set aside the ex-parte judgment was dismissed for failure to show sufficient cause for non-attendance. The applicant filed a notice of appeal against that dismissal and sought a stay of execution of the decree and orders, contending costs had been taxed, execution was imminent, and the appeal would be rendered nugatory. The respondent, who has custody of the couple's two minor children, contended the applicant had not paid maintenance, still occupied the matrimonial home, and would suffer no irreparable loss.

Issues

Whether the applicant established a prima facie case with a likelihood of success on the intended appeal.
Whether the applicant would suffer irreparable damage, or the appeal would be rendered nugatory, if a stay of execution was not granted.

Orders

The application is dismissed.
The costs of the application shall abide the outcome of the appeal.

Key headnotes

Civil Procedure — Stay of Execution Pending Appeal — Governing Principles

An applicant for a stay of execution pending appeal must establish that irreparable damage will be suffered or the appeal rendered nugatory if a stay is refused, that the appeal has a likelihood of success or a prima facie case, and that the application was made without delay; only if the first two are not established does the court consider the balance of convenience.

Civil Procedure — Stay of Execution — Likelihood of Success — Evidential Burden

To establish a likelihood of success on appeal an applicant must place before the court material going beyond a mere notice of appeal — such as a memorandum or draft memorandum of appeal — giving the court an idea of the possible grounds of appeal; a bare assertion of likely success is insufficient.

Civil Procedure — Stay of Execution — Irreparable Damage — Ascertainable Costs

Irreparable damage means a loss that cannot be easily ascertained because there is no fixed pecuniary standard of assessment or that cannot be compensated in money; where the only execution sought is the recovery of taxed costs, which are ascertainable and monetary, no irreparable damage is established.

Civil Procedure — Mistake of Counsel — Proof

An allegation that a party was condemned unheard owing to the mistake or dilatory conduct of counsel must be substantiated by evidence from counsel himself; absent such evidence before the lower court or in support of the application, the allegation cannot ground a finding of likely success on appeal.

Legislation cited (3)

Judicature (Court of Appeal Rules) Directions, SI 13-10, r.6(2)(b)
Court of Appeal Rules r.43
Civil Procedure Act s.98

Cases cited (3)

Theodore Ssekikubo & 3 Others v Attorney General & 4 Others [2013] UGSC 21
Osman Kassim v Century Bottling Company Limited (Civil Appeal No. 34 of 2019)
City Council of Kampala v Donozio Musisi Sekyaya (Civil Application No. 3 of 2000)

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.