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Kiganda John & Anor v Yakobo M.N Senkungu & 5 Ors [2017] UGSC 71

Supreme Court · 2017 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion for an interim order of stay of execution pending the disposal of a substantive application for stay of execution before the Supreme Court
Decision
Interim order for stay of execution granted pending the hearing of the substantive application for stay of execution

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Holding

The Supreme Court (single justice) held that although no notice of appeal can be filed against its own final judgment, an application to review that judgment may be treated as analogous to a notice of appeal under rule 6 where the review stands a reasonable likelihood of success. Here the review alleged that the applicants' father, a registered proprietor, was struck off the register without being heard, breaching the right to a fair hearing under Articles 28(1) and 44(c). Finding a reasonable likelihood of success, a serious threat of execution by warrant, and that the review would be rendered nugatory, the court allowed the interim stay to preserve the status quo, distinguishing Belex Tours v Crane Bank.

Facts

The 6th respondent, holding letters of administration of the estate of the late Gusite Nakaima, sued in the High Court to cancel the title of Yakobo M.N Senkungu over land at Mawogola, alleging fraudulent registration. During the suit the proprietorship passed to Ezekiel Rwankanyuzi, who was registered in 1996. An application to join Rwankanyuzi as a defendant was dismissed, so he was never a party. The High Court found no fraud, but the Court of Appeal reversed and the Supreme Court upheld that reversal, dismissing the appeal. The applicants, sons and beneficiaries of the late Rwankanyuzi who occupy the land since 1996, were never parties to any of the proceedings, yet their father's name had been struck off the register. They filed an application to review the Supreme Court's judgment, a substantive application for stay, and this application for an interim stay. A warrant of execution to deliver vacant possession of the land had been issued by the Court of Appeal.

Issues

  1. Whether an application to review the Supreme Court's own final decision should be treated as analogous to a notice of appeal for the purpose of granting an interim order of stay of execution.
  2. Whether the applicants satisfied the requirements for the grant of an interim order of stay of execution.
  3. Whether the applicants, who were not parties to the prior proceedings, had locus standi to apply for stay of execution.

Orders

  • The application for an interim order of stay of execution is allowed pending the hearing of the substantive application for stay of execution.
  • Costs to abide the outcome of the substantive application for stay of execution.

Key headnotes

Civil Procedure — Stay of Execution — Application for review treated as analogous to a notice of appeal
Where no notice of appeal can lie because the impugned decision is that of the final court, an application to review that decision may be treated as analogous to a notice of appeal for the purpose of granting an interim order of stay of execution, provided the review stands a reasonable likelihood of success.
Civil Procedure — Inherent Jurisdiction — Power to recall and review final judgments
The court's inherent power under rule 2(2) of the Judicature (Supreme Court Rules) Directions to make orders to achieve the ends of justice or prevent abuse of process extends beyond the slip rule and may be exercised to recall, correct or otherwise alter its own judgment where special circumstances warrant it.
Constitutional Law — Right to a Fair Hearing — Striking a registered proprietor off the register without notice
Striking a registered proprietor's name off the land register, and binding his successors, without affording him or them an opportunity to be heard breaches the right to a fair hearing under Articles 28(1) and 44(c) of the Constitution.
Civil Procedure — Stay of Execution — Requirements for an interim order
An applicant for an interim order of stay of execution must show a lodged notice of appeal (or its analogue) and substantive stay application, a serious threat of execution, that the appeal will be rendered nugatory without the order, a reasonable likelihood of success, and that irreparable loss will result if the order is refused.

Legislation cited (9)

  • Judicature (Supreme Court Rules) Directions r.2(2)
  • Judicature (Supreme Court Rules) Directions r.6(2)(a)
  • Judicature (Supreme Court Rules) Directions r.6(2)(b)
  • Judicature (Supreme Court Rules) Directions r.42(1)&(2)
  • Judicature (Supreme Court Rules) Directions r.43(1)
  • Judicature (Supreme Court Rules) Directions r.50
  • Judicature (Supreme Court Rules) Directions r.72
  • Constitution of Uganda Article 28(1)
  • Constitution of Uganda Article 44(c)

Cases cited (11)

  • Francis Drake Lubega v Attorney General and 2 Others (Miscellaneous Application No. 13 of 2015)
  • Theodore Ssekikubo and Others v Attorney General (Civil Appeal No. 4 of 2014)
  • Alcon International Ltd v The New Vision Printing and Publishing Co. Ltd and Another (Miscellaneous Application No. 4 of 2010)
  • Hwang Sung Industries Ltd v Tajdin Hussein and Others (Civil Application No. 19 of 2008)
  • Belex Tours and Travel Ltd v Crane Bank Ltd (Miscellaneous Application No. 21 of 2015)
  • G.Afro v Uganda Breweries Ltd (Civil Application No. 12 of 2008)
  • Livingstone Sewanyana v Martin Aliker (Civil Application No. 4 of 1991)
  • Lakhamshi Brothers Ltd. vs. R. Raja and Sons
  • Stanbic Bank Uganda vs. Atabya Agencies Ltd
  • Akankwasa Damian v Uganda (Constitutional Application No. 7 of 2011 and 9 of 2011)
  • Hon. Mukasa Fred Mbidde and Hon. Micheal Mabikke v Law Development Centre (Miscellaneous Application No. 15 of 2015)
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.