Wakilii

Kaddu v Kaddu (Civil Application 375 of 2024)

Court of Appeal · [2025] UGCA 63 · 2025 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application before a single Justice of the Court of Appeal for a stay of execution pending appeal
Decision
Application for stay of execution dismissed; costs to abide the outcome of the appeal

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Holding

The single Justice dismissed all three preliminary objections, finding the application did not depart from the pleadings, that questions of the appeal's competence (late service, security for costs) are reserved for the full bench, and that mere taking of possession without evidence of sale was not full execution. On the merits, the application failed: it was filed more than three months after the relevant ruling and so was unduly delayed; no material was placed before the court to show the appeal had a likelihood of success; the applicant could suffer no irreparable injury over property he alleged to have already sold to a third party; and the nugatory ground could not succeed absent a likelihood of success. The application was dismissed.

Facts

The applicant filed a divorce cause against the respondent in which a Decree Nisi was entered by consent and a Decree Absolute followed; ownership of property comprised in Kyadondo Block 246 Plot 1635 was reserved for determination. The court later heard the property question in the applicant's absence and ruled for the respondent, declaring the property matrimonial property and certain third-party transactions fraudulent. An application to set aside the ex-parte proceedings was dismissed, as was the applicant's appeal-related relief. The High Court Registrar issued an order for attachment and sale of the property to realise taxed costs of about UGX 46,415,450 awarded to the respondent. A prior application to stay execution was dismissed on 1 July 2024. The present application to stay execution was filed on 9 October 2024, more than three months later. The applicant contended he had sold the property to a third party before the divorce cause was filed and that the appeal would be rendered nugatory if the property was sold.

Issues

  1. Whether the preliminary objections that the application departed from the pleadings, that the appeal was incompetent for late service of appeal documents, and that the application had been overtaken by events, should be upheld.
  2. Whether the applicant satisfied the conditions for the grant of a stay of execution pending appeal.

Orders

  • The Application is dismissed.
  • The costs of the Application shall abide the outcome of the Appeal.

Key headnotes

Civil Procedure — Stay of Execution — Mandate of a Single Justice
On an application for stay of execution the court's mandate is confined to determining whether the lodged appeal is not frivolous but raises arguable grounds; it does not extend to the merits of the appeal, which are reserved for the full bench, including the power to validate documents filed out of time.
Civil Procedure — Stay of Execution — Undue Delay
An application for stay of execution must be brought without undue delay; an application filed more than three months after the delivery of the ruling in an earlier dismissed stay application fails on that requirement.
Civil Procedure — Stay of Execution — Likelihood of Success of Appeal
To establish a likelihood of success an applicant must, beyond filing a notice of appeal, place before the court material that goes beyond a mere statement that the appeal has a likelihood of success, so as to give the court an idea of the possible grounds of the intended appeal.
Civil Procedure — Stay of Execution — Irreparable Injury
An applicant cannot demonstrate irreparable injury from execution against property which he does not own and which he alleges to have already sold to a third party; the standing to resist such execution belongs to the third parties through objector proceedings.
Civil Procedure — Stay of Execution — Appeal Rendered Nugatory
A finding that an appeal will be rendered nugatory is contingent on the applicant first satisfying the court that the intended appeal has a likelihood of success; absent that, the nugatory ground cannot succeed.
Civil Procedure — Execution — Whether Overtaken by Events
The taking of possession of property by a decree-holder's agents, absent evidence of sale of the attached property, does not amount to full and complete execution of an order for attachment and sale.

Legislation cited (5)

  • Judicature Act s.33
  • Court of Appeal Rules r.2(2)
  • Court of Appeal Rules r.6(2)(b)
  • Court of Appeal Rules r.43(1)
  • Court of Appeal Rules r.44(1)

Cases cited (4)

  • Theodore Ssekikubo and 3 Others v Attorney General and 4 Others [2013] UGSC 21
  • David Etuke v Okonye Mustafa and Another [2017] UGCA 1
  • Byamukama Fred v Kyampagi and Others [2024] UGCA 285
  • Osman Kassim v Century Bottling Company Ltd [2020] UGSC 35
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.