Katayira v Bugembe (Civil Reference 9 of 2017)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

On a reference from a single Justice, the Court held that the Civil Procedure Act and Rules are not confined to the High Court and Magistrates Courts but extend to the superior courts. The single Justice had erred by going into the merits of the right of appeal, which were beyond the scope of an interim-order application. The Court found the applicant had in fact satisfied the three conditions for an interim stay of execution (a competent notice of appeal, a pending substantive application, and a serious threat of execution). However, because the execution had already been completed and the suit land transferred and possessed, an interim stay being preventive rather than corrective could not reverse it. The reference was dismissed with costs.

Facts

The respondent, administrator of the estate of the late Kristopha Wadda, sued the applicant in the High Court for recovery of land at Ndeeba and cancellation of the applicant's title, alleging fraudulent registration. The court ordered the applicant's name cancelled and substituted with the respondent's. The applicant filed a notice of appeal to the Court of Appeal but did not lodge a memorandum of appeal within time; his former advocates had lost contact with him. The respondent applied to strike out the notice of appeal, and the Court of Appeal found it withdrawn by operation of Rule 84. The applicant appealed to the Supreme Court and sought an interim order of stay of execution pending his substantive application. A single Justice dismissed the application, holding he had no automatic right of appeal. By the time of the reference, the respondent had executed the decree, taken title to the suit land, and taken possession following the applicant's eviction.

Issues

1. Whether the Civil Procedure Act and Rules apply only to the High Court and Magistrates Courts or also extend to the superior courts.
2. Whether the learned single Justice correctly applied the Civil Procedure Act and Rules in determining whether to grant the interim order.
3. Whether the applicant satisfied the conditions for the grant of an interim order of stay of execution.
4. Whether an interim order of stay of execution can be granted where the execution complained of has already taken place.

Orders

• The reference is dismissed with costs to the respondent.

Key headnotes

Legislation cited (14)

• Judicature Act s.8(2)
• Judicature Act s.7
• Judicature Act s.6(1)
• Judicature Act s.11
• Civil Procedure Act s.1
• Civil Procedure Act s.76(1)
• Civil Procedure Act s.77
• Civil Procedure Rules Order 44 rule 1
• Judicature (Supreme Court Rules) Directions Rule 2(2)
• Judicature (Supreme Court Rules) Directions Rule 39(2)
• Judicature (Supreme Court Rules) Directions Rule 52(1)(b)
• Judicature (Court of Appeal Rules) Directions Rule 53(2)
• Judicature (Court of Appeal Rules) Directions Rule 84
• Constitution Article 132(2)

Cases cited (8)

• Gashumba Maniraguha v Nkundiye (Civil Application No. 24 of 2015)
• Hon. Theodore Ssekikubo and Others (Constitutional Application No. 6 of 2013)
• Cheboi v Koroko (Civil Miscellaneous Application No. 105 of 2014)
• Zubeda Mohamed & Anor v Wallia & Anor (Civil Reference No. 7 of 2016)
• Hwang Sung Industries Ltd v Tajdin Hussein & Others (Civil Application No. 19 of 2008)
• Hon. Theodore Ssekikuubo and Others v Attorney General and Others (Constitutional Application No. 4 of 2014)
• Yakobo Senkungu and Others v Cerencio Mukasa (Civil Application No. 5 of 2013)
• Beatrice Kobusingye v Fiona Nyakana and Anor (Civil Appeal No. 5 of 2004)