Kampala Bottlers Ltd v Uganda Bottlers Ltd (Civil Application 25 of 1995)

Supreme Court · [1995] UGSC 25 · 1995 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to the Supreme Court for a stay of execution pending the determination of an intended appeal from a High Court judgment

Decision

Stay of execution granted pending determination of the appeal, conditional on deposit of security for costs

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 3 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

On an application for stay of execution pending appeal, the Supreme Court held that the proper test is whether the conditions in Order 39 rule 4(3) of the Civil Procedure Rules are satisfied, namely that substantial loss may result unless the order is made, that the application is made without unreasonable delay, and that security for costs has been given, and not whether the intended appeal is likely to succeed. Once the three conditions are fulfilled the order ought to be granted regardless of the appeal's prospects. The applicant, a successful soft-drinks manufacturer, would suffer substantial loss if its operations stopped, and the stay was granted on terms that security for costs be deposited.

Facts

The dispute in the High Court (consolidated Civil Suits Nos. 435 and 114 of 1992) concerned the ownership of industrial premises on 6th Street, Kampala, occupied by the applicant company. The trial judge found for the respondent company, ordered the applicant to vacate the premises, and directed the Chief Registrar of Titles to cancel the applicant's name from the register and substitute the respondent. The applicant sought a stay of execution from the trial judge pending an intended appeal to the Supreme Court, but the judge saw no likelihood of the appeal succeeding and, for that reason, did not consider the conditions in Order 39 rule 4(3); he granted only a temporary 14-day stay to enable the applicant to apply elsewhere. The applicant, a manufacturer of soft drinks with a sizeable number of employees that paid substantial taxes, then applied to the Supreme Court, where its evidence of likely substantial loss was not challenged.

Issues

Whether the test on an application for stay of execution pending appeal is the satisfaction of the conditions in Order 39 rule 4(3) of the Civil Procedure Rules, rather than whether the intended appeal is likely to succeed.
Whether the applicant satisfied the conditions for a stay of execution, including that it would suffer substantial loss and that security for costs be given.

Orders

Application for stay of execution allowed.
Stay of execution granted pending the determination of the intended appeal.
Security for costs to be deposited by the applicant in the named account.

Key headnotes

Civil Procedure — Stay of Execution — Test Independent of the Merits of the Appeal

The test on an application for stay of execution pending appeal is whether the conditions in Order 39 rule 4(3) of the Civil Procedure Rules are satisfied, not whether the intended appeal is likely to succeed; once those conditions are fulfilled the stay ought to be granted regardless of whether the appeal will fail or succeed.

Civil Procedure — Stay of Execution — Conditions Under Order 39 rule 4(3)

An applicant for stay of execution must show that substantial loss may result to it unless the order is made, that the application has been made without unreasonable delay, and that security for the costs of the appeal has been given.

Civil Procedure — Stay of Execution — Irrelevance of a Challenge to the Trial Judge's Decision

A trial judge should not be troubled by, or allow to influence the decision whether to grant a stay, the fact that the judgment is being challenged on appeal; the prospects of the appeal are not a proper consideration in the exercise of the discretion to stay execution.

Legislation cited (2)

Civil Procedure Rules O.39 r.4(3)
Rules of the Supreme Court r.5

Cases cited (1)

Kyazze v Busingye (Civil Application No. 18 of 1990)

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.