Wakilii

Kato v Nalwoga (Civil Miscellaneous Application 11 of 2011)

Supreme Court · [2013] UGSC 15 · 2013 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for an order of stay of execution pending the final disposal of an appeal to the Supreme Court from the Court of Appeal
Decision
Full stay of execution granted without an order requiring the applicants to furnish security for due performance of the decree

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court held that Rule 6(2)(b) of the Judicature (Supreme Court) Rules empowers it to order a stay of execution as it considers just, and imposes no requirement that an applicant deposit security for due performance of a decree before the court exercises that power; the practice of imposing such security is only a rule of practice based on case law. The applicants' residence outside Uganda was no bar, since the respondent had sued them while they were already abroad, and the substantive dispute concerned ownership of land where preserving the status quo best served the interests of justice. The court granted a full stay without requiring security.

Facts

The respondent succeeded against the applicants in the Court of Appeal (Civil Appeal No. 79 of 2009), which awarded her general damages of Shs. 100,000,000/= and taxed costs in a dispute concerning ownership of land. The applicants, who reside outside Uganda, intended to appeal to the Supreme Court and sought a stay of execution to prevent demolition of a residential house and other execution steps. An interim stay had earlier been denied, and the respondent had partly executed the decree, taking possession of the suit land. By consent the parties entered a partial stay on agreed terms, three of which favoured the respondent, but they could not agree on the respondent's proposal that the applicants provide security for due performance of the decree. The parties filed written submissions on that single outstanding point.

Issues

  1. Whether the applicants should be required to furnish security for due performance of the decree as a pre-condition for the grant of a full stay of execution.
  2. Whether a full stay of execution should issue pending the final disposal of the intended appeal.

Orders

  • Execution of the decree issued in Court of Appeal Civil Appeal No. 79 of 2009 stayed until the final disposal of the applicants' appeal.
  • The applicants are ordered to take all steps necessary to ensure their appeal is ready for hearing at the next convenient civil session of the Court.
  • The costs of this application shall abide the outcome of the appeal.

Key headnotes

Civil Procedure — Stay of Execution — Security for Due Performance Not a Precondition
Rule 6(2)(b) of the Judicature (Supreme Court) Rules empowers the court to order a stay of execution in a civil proceeding as it may consider just, and imposes no requirement that an applicant deposit security for due performance of a decree before the court may exercise that power.
Civil Procedure — Stay of Execution — Security as a Discretionary Rule of Practice
The court's past practice of imposing a condition of security for due performance in some cases is only a rule of practice based on case law, and the court must exercise its discretion on the facts and circumstances of each case rather than be bound by its earlier decisions.
Civil Procedure — Stay of Execution — Land Disputes — Preservation of Status Quo
Where the substantive dispute concerns ownership of land and the auxiliary award of general damages may be reconsidered on the merits of the appeal, the interests of justice are better served by preserving the status quo pending appeal than by ordering the applicant to deposit a substantial sum as security for due performance.
Civil Procedure — Stay of Execution — Residence Abroad of Applicant
An applicant's residence outside the jurisdiction is not, by itself, a sufficient ground to require security for due performance of a decree, particularly where the respondent sued the applicant while the applicant was already living abroad, since requiring such security would improperly block an unsuccessful litigant from pursuing a right of appeal.

Legislation cited (8)

  • Judicature (Supreme Court) Rules r.2(2)
  • Judicature (Supreme Court) Rules r.6(2)(b)
  • Judicature (Supreme Court) Rules r.41(2)
  • Judicature (Supreme Court) Rules r.42(1)
  • Judicature (Supreme Court) Rules r.42(2)
  • Judicature (Supreme Court) Rules r.101
  • Judicature (Supreme Court) Rules r.101(3)
  • Reciprocal Enforcement of Judgments Act Cap 21

Cases cited (5)

  • Ahmed Mohamed Kisuule v Greenland Bank (in liquidation) (Civil Application No. 10 of 2010)
  • Idah Iterura v Joyce Muguta (Civil Application No. 2 of 2007)
  • Kasaala Growers Co-operative Society v Jonathan Kalemera & Anor (Civil Application No. 24 of 2010)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Appeal No. 18 of 1990)
  • Joel Kato and Margaret Kato v Nuulu Nalwoga (Civil Application No. 12 of 2011)
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.