Muyingo v Ssempijja & Another (Civil Application 291 of 2023)

Court of Appeal · [2025] UGCA 62 · 2025 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

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

Decision

Application for stay of execution dismissed with costs to the 2nd respondent

The full judgment

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Holding

The Court of Appeal refused a stay of execution pending a second appeal. Although the applicant had lodged a notice of appeal, applied without unreasonable delay, and raised arguable (if weak) grounds, he failed the remaining conditions. What remained for execution was recovery of costs, which is quantifiable in money and would not render a successful appeal nugatory. On his own affidavit the applicant was never in possession of the suit land, so execution for vacant possession threatened him no irreparable loss. He also showed no readiness to provide security for due performance of the decree. Having failed to satisfy the essential requirements, the application was dismissed with costs.

Facts

In 2010 the Sharia Court of Kampala distributed the estate of the late Hajji Amiisi Ddungu; the applicant and the 1st respondent were among the beneficiaries. In 2014 the 1st respondent sold his inherited share to the 2nd respondent. The applicant objected, contending that as the elder sibling he should have received that lucrative portion, and sued the respondents in the Chief Magistrate's Court at Masaka for trespass and cancellation of the sale. The suit was dismissed in 2017; the High Court at Masaka upheld that dismissal on appeal. The applicant lodged a second appeal in the Court of Appeal (Civil Appeal No. 189 of 2019). The respondents taxed their costs and pursued execution. The applicant's earlier High Court application for stay of execution was dismissed on 30/31 May 2023, after which he brought this application. On his own affidavit in rejoinder, the applicant accepted that the 2nd respondent, not he, was in possession of the suit land, which had been cleared and subdivided.

Issues

Whether this is a proper case for the grant of an order of stay of execution pending appeal.
Whether the applicant brought the application without unreasonable delay.
Whether the applicant's appeal has a high likelihood of success and is not frivolous.
Whether the appeal will be rendered nugatory if the stay is not granted.
Whether the applicant will suffer substantial or irreparable loss if the stay is not granted.
Whether the applicant has demonstrated readiness to provide security for due performance of the decree.

Orders

The application is dismissed with costs to the 2nd respondent.

Key headnotes

Civil Procedure — Stay of Execution — Conditions for grant

An applicant for a stay of execution pending appeal under rule 6(2)(b) of the Court of Appeal Rules must show that a notice of appeal has been lodged, that the appeal has a likelihood of success and is not frivolous, that substantial or irreparable loss will result if the stay is refused, that the appeal would be rendered nugatory without it, and that the application was made without unreasonable delay.

Civil Procedure — Stay of Execution — Likelihood of success

In assessing likelihood of success the court does not delve into the merits of the appeal; it suffices that there are pertinent appealable grounds raising a serious question to be tried with a probability of success that requires the court's attention.

Civil Procedure — Stay of Execution — Appeal rendered nugatory

Where what remains for execution is the recovery of costs, or a subject matter assessable in monetary terms with no unquantifiable collateral loss, execution will not render a successful appeal nugatory because the applicant can be compensated in damages.

Civil Procedure — Stay of Execution — Irreparable loss

An applicant who, on his own evidence, is not in possession of the suit land cannot establish that execution for vacant possession will cause him irreparable loss.

Civil Procedure — Stay of Execution — Security for due performance

An applicant for a stay of execution must demonstrate readiness to provide security for due performance of the decree should the appeal fail, although courts remain reluctant to insist on such security where it would stifle the appeal.

Legislation cited (7)

Judicature (Court of Appeal Rules) Directions SI 13-10 r.6(2)(b)
Judicature (Court of Appeal Rules) Directions SI 13-10 r.42
Judicature (Court of Appeal Rules) Directions SI 13-10 r.43
Judicature (Court of Appeal Rules) Directions SI 13-10 r.76
Judicature (Court of Appeal Rules) Directions SI 13-10 r.105
Civil Procedure Act s.72
Civil Procedure Act s.74

Cases cited (10)

Davis Wesley Tusingwire v Attorney General (Constitutional Application No. 1 of 2014)
Lawrence Musiitwa Kyazze v Eunice Besigye (Civil Application No. 18 of 1990)
Ssekikubo and 4 Others v Attorney General and 4 Others (Constitutional Application No. 3 of 2014)
Dr. Ahmed Muhammed Kisuule v Greenland Bank (in liquidation) (Civil Appeal No. 7 of 2010)
American Cyanamid Co v Ethicon Ltd [1975] AC 396
John Baptist Kawanga v Namyalo Kevira and Another (Miscellaneous Application No. 12 of 2017)
Lubanga Jamada vs Dr. Ddumba Edward (2016) UGCA
DFCU Bank Ltd v Dr. Ann Persis Nakate Lussejere (Civil Appeal No. 29 of 2003)
Alice Wambui Nganga v John Ngure Kahoro and Another (ELC Case No. 482 of 2017) [2021] eKLR
Tropical Commodities Supplies Ltd and Others v International Credit Bank Ltd (in liquidation) [2004] 2 EA 331

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