Wakilii

Attorney General v Sundya and 5 Others (Constitutional Application 26 of 2022)

Constitutional Court · [2023] UGCC 118 · 2023 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by Notice of Motion for a stay of execution pending appeal to the Supreme Court
Decision
Application for stay of execution granted; execution of the Constitutional Court's orders in Constitutional Petition No. 24 of 2019 stayed pending the Supreme Court appeal

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Constitutional Court granted the Attorney General a stay of execution of its orders in Constitutional Petition No. 24 of 2019 pending appeal to the Supreme Court. Applying the established conditions for a stay, the Court held the applicant had lodged a Notice of Appeal in time, the intended appeal raised serious points of law with a high likelihood of success, the appeal would be rendered nugatory because convicts serving 21 to 73 year sentences would be released and have to be traced, and the application was made without undue delay. Costs to abide the outcome of the appeal.

Facts

In Constitutional Petition No. 24 of 2019, decided on 2 December 2022, the Constitutional Court made declarations and orders affecting convicts serving sentences of between 21 and 73 years, holding that no enabling legislation prescribed such penalties. The Attorney General, being dissatisfied, lodged a Notice of Appeal to the Supreme Court on 12 December 2022, ten days after judgment, and filed this application for a stay of execution on 22 December 2022. If the orders were executed, convicts who had been in custody for more than 20 years would be released. The respondents, inmates affected by the petition, opposed the stay, contending that the prison authorities held their contact details and could re-arrest them, and that no compensation could atone for continued illegal detention. A supplementary affidavit indicated an imminent threat to execute and alter the status quo.

Issues

  1. Whether the applicant had lodged a Notice of Appeal in accordance with the Rules of the Court.
  2. Whether the intended appeal had a high likelihood of success.
  3. Whether the intended appeal would be rendered nugatory if a stay of execution was not granted.
  4. Whether the application for a stay of execution was made without undue delay.

Orders

  • Execution of the orders in Constitutional Petition No. 24 of 2019 is stayed until final disposal of the applicant's appeal by the Supreme Court.
  • The costs of this application shall abide the outcome of the appeal.

Key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant
To obtain a stay of execution pending appeal the applicant must show that a notice of appeal has been lodged in accordance with the rules, that the appeal has a high likelihood of success or a prima facie right of appeal, that the applicant will suffer irreparable loss or that the appeal will be rendered nugatory if a stay is not granted, and that the application was made without undue delay; where likelihood of success and nugatoriness are not established the court considers where the balance of convenience lies.
Civil Procedure — Stay of Execution — Likelihood of Success — Scope of Inquiry
In assessing the likelihood of success of an intended appeal on an application for a stay, the court need not determine the merits or constitutionality of the matters complained of, as those fall to be decided at the hearing of the appeal; it is sufficient that the appeal raises a substantial question of law or has some prospect of success.
Civil Procedure — Stay of Execution — Preservation of Status Quo and Nugatory Appeal
It is the paramount duty of the court to ensure that an appeal, if successful, is not rendered nugatory, and the court has discretion to grant a stay of execution to preserve the status quo where it appears equitable to do so.

Legislation cited (8)

  • 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 76(2)
  • Constitution of Uganda Article 28(8)
  • Constitution of Uganda Article 28(12)
  • Civil Procedure Rules Order 43 rules 1 and 2
  • Prisons Act Cap 304
  • Penal Code Act Cap 120
  • Law Revision (Penalties in Criminal Matters) Miscellaneous (Amendment) Act 2019

Cases cited (14)

  • National Housing Construction Corporation v Kampala District Land Board (Civil Appeal No. 6 of 2002)
  • Akankwasa Damian v Uganda (Civil Appeal No. 7 & 9 of 2011)
  • Theodore Ssekikuubo & Ors v Attorney General & Ors (Civil Appeal No. 6 of 2013)
  • Attorney General v Eddie Kwizera (Constitutional Application No. 1 of 2020)
  • Attorney General v Susan Kigula & 417 Others (Constitutional Petition No. 9 of 2006)
  • Davis Wesley Tusingwire v Attorney General (Constitutional Application No. 1 of 2014)
  • Attorney General v Hon. Michael Kabaziguruka (Civil Appeal No. 5 of 2021)
  • Dr. Ahmed Muhammed Kisuule v Greenland Bank (in Liquidation) (Civil Application No. 7 of 2010)
  • Hon. Theodore Ssekikuubo & Ors v Attorney General & Ors (Constitutional Application No. 3 of 2014)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
  • Hon. Theodore Ssekikuubo & Others v Attorney General & Another (Constitutional Application No. 6 of 2013)
  • Wilson v Church (No. 2) [1879] 12 Ch. D 454
  • National Enterprise Corporation v Mukisa Foods (Civil Application No. 7 of 1998)
  • J.W.R. llazzoora v. M.L.S. Rukuba
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.