Wakilii

Attorney General v Kazinda (Constitutional Application 27 of 2020)

Supreme Court · [2021] UGSC 15 · 2021 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to the Supreme Court for stay of execution of a Constitutional Court judgment pending appeal
Decision
Application for stay of execution granted; execution of the Constitutional Court's judgment stayed pending determination of the intended appeal

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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 Court overruled the respondent's preliminary objection that no appeal existed: under Rule 6(2)(b) all that is required for a stay of execution is the lodgment of a Notice of Appeal in accordance with Rule 72, and the delay in instituting the appeal was attributable to the Court of Appeal Registrar's failure to supply the proceedings, time excludable under Rule 79(6). On the merits, the Court found the application was brought without undue delay and that the intended appeal raised matters of significant public importance and serious constitutional issues warranting final determination. To safeguard the right of appeal and prevent it being rendered nugatory, the Court granted the stay.

Facts

The respondent, a former Principal Accountant in the Office of the Prime Minister, was arrested in 2012 and charged at the Anti-Corruption Court with numerous corruption-related offences including embezzlement, causing financial loss, forgery and abuse of office, facing several trials and convictions. He filed Constitutional Petition No. 30 of 2014 alleging that sections 29, 30 and 99 of the Trial on Indictments Act and sections 89, 90 and 91 of the Magistrates Courts Act contravened Article 28(9) of the Constitution. By a majority judgment delivered on 7 August 2020, the Constitutional Court granted reliefs including a permanent stay of certain criminal proceedings, his discharge, a prohibition against further prosecution on the same facts, and a declaration nullifying impugned statutory provisions. The Attorney General, dissatisfied, filed a Notice of Appeal on 11 August 2020 with a request for the record, then applied to the Supreme Court for a stay of execution pending the appeal.

Issues

  1. Whether the application for stay of execution should be disallowed on the ground that no appeal had been instituted within the time prescribed by Rule 79(4) of the Supreme Court Rules and was therefore deemed withdrawn under Rule 80(a).
  2. Whether the applicant satisfied the established conditions for the grant of an order of stay of execution pending appeal.

Orders

  • The execution of the majority judgment and orders of the Constitutional Court dated 7 August 2020 in Constitutional Petition No. 30 of 2014 be and is hereby stayed pending the hearing and determination of the intended appeal.
  • The applicant shall institute the intended appeal without delay.
  • Each party shall bear its/his own costs of the application.

Key headnotes

Civil Procedure — Stay of Execution — Requirements under Rule 6(2)(b) of the Supreme Court Rules
For an application for a stay of execution under Rule 6(2)(b) of the Supreme Court Rules to be entertained, all that is required is that the applicant has lodged a Notice of Appeal in accordance with Rule 72; the absence of a Memorandum and Record of Appeal is not a ground to refuse the order.
Civil Procedure — Time for Instituting Appeal — Exclusion of Registrar's Delay under Rule 79(6)
Where the Registrar of the Court of Appeal fails to supply copies of the proceedings and judgment within the time prescribed by Rule 79(5), the time the Registrar certifies as necessary for preparing those copies is excluded in computing the time within which the appeal must be instituted, so an appeal is not deemed withdrawn under Rule 80(a) on account of that delay.
Civil Procedure — Stay of Execution — Discretion and Governing Principles
The power to grant a stay of execution is discretionary and must be exercised judiciously according to established principles: likelihood of success or a prima facie case, that the appeal will be rendered nugatory or the applicant will suffer irreparable damage, where the balance of convenience lies, and that the application was brought without delay.
Civil Procedure — Stay of Execution — Safeguarding the Right of Appeal in Matters of Public Importance
Where an intended appeal raises serious constitutional issues of significant public importance, it is the duty of the Court to ensure that the appeal, if successful, is not rendered nugatory and to safeguard the right of appeal; the Court will not at that stage determine the likelihood of success before hearing the grounds of appeal.

Legislation cited (18)

  • Rules of the Supreme Court r.2(2)
  • Rules of the Supreme Court r.6(2)(b)
  • Rules of the Supreme Court r.42
  • Rules of the Supreme Court r.43
  • Rules of the Supreme Court r.72
  • Rules of the Supreme Court r.79(4)
  • Rules of the Supreme Court r.79(5)
  • Rules of the Supreme Court r.79(6)
  • Rules of the Supreme Court r.80(a)
  • Constitution of Uganda art.28(1)
  • Constitution of Uganda art.28(9)
  • Constitution of Uganda art.137(7)
  • Trial on Indictments Act s.29
  • Trial on Indictments Act s.30
  • Trial on Indictments Act s.99
  • Magistrates Courts Act s.89
  • Magistrates Courts Act s.90
  • Magistrates Courts Act s.91

Cases cited (4)

  • Hon. Theodore Ssekikubo and Others v Attorney General and Another (Constitutional Application No. 6 of 2013)
  • Dr Ahmed Kisule v Greenland Bank (Civil Application No. 7 of 2010)
  • Electoral Commission v Eddie Kwizera (Constitutional Application No. 1 of 2020)
  • Attorney General of Uganda v East African Law Society and Another (Application No. 1 of 2013)
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.