Wakilii

Tayebwa v Mukasa (Civil Application 15 of 2017)

Supreme Court · [2022] UGSC 1 · 2022 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for stay of execution of a Supreme Court judgment pending the determination of an application to review that judgment.
Decision
Stay of execution granted in respect of Block 31 Plot 1 pending determination of the application for review.

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Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

By a 3-2 majority the Supreme Court held that, although Rule 6(2)(b) requires a notice of appeal as the precondition for a stay of execution, the court may under its inherent powers in Rule 2(2) treat an application for review as analogous to a notice of appeal where that review stands a reasonable likelihood of success. Finding that the review—premised on the cancellation of the applicant's late father's registered title without a hearing, contrary to the right to a fair hearing under Article 28—had a high likelihood of success, the majority granted a stay of execution of the part of the judgment relating to Block 31 Plot 1, pending determination of the review. Kisaakye and Arach-Amoko, JJSC, dissented.

Facts

The respondent, as administrator of a deceased estate, sued to cancel certificates of title over land at Mawogola, alleging fraudulent transfers. The High Court dismissed the suit; the Court of Appeal reversed in the respondent's favour, and the Supreme Court upheld that reversal in Civil Appeal No. 17 of 2014. The applicant, claiming to be a beneficiary and son of the late Ezekiel Rwankanyuzi—who had been a registered proprietor of part of the land (Block 31 Plot 1) but was never made a party and whose title was struck off without a hearing—filed an application for review of the Supreme Court's judgment, together with this application for stay of execution and an interim order. An interim stay had already been granted. A warrant of execution issued by the Court of Appeal directed a court bailiff to deliver vacant possession of the suit land to the respondent. The applicant had occupied the land since 1996 and relied on it for his livelihood.

Issues

  1. Whether, in the absence of a notice of appeal, an application for review brought by a non-party may be treated as analogous to a notice of appeal so as to bring it within Rule 6(2)(b) of the Judicature (Supreme Court) Rules for the grant of a stay of execution.
  2. Whether the underlying application for review stood a reasonable likelihood of success.
  3. Whether the applicant would suffer irreparable damage, or the review be rendered nugatory, if a stay of execution were not granted.
  4. Whether a non-party to the proceedings had locus standi to seek a stay of execution of the court's judgment.

Orders

  • The application for stay of execution is allowed.
  • Stay of execution is granted in respect of the part of the decision in Civil Appeal No. 17 of 2014 concerning property comprised in Block 31 Plot 1, pending determination of the application for review in Civil Application No. 11 of 2017.
  • Costs of this application to abide the outcome of the application for review in Civil Application No. 11 of 2017.

Key headnotes

Civil Procedure — Stay of Execution — Notice of Appeal as a precondition under Rule 6(2)(b)
Under Rule 6(2)(b) of the Judicature (Supreme Court) Rules, the court may order a stay of execution in civil proceedings only where a notice of appeal has been lodged in accordance with Rule 72.
Civil Procedure — Inherent Powers — Rule 2(2) — Application for review treated as analogous to a notice of appeal
By virtue of its inherent powers under Rule 2(2) of the Judicature (Supreme Court) Rules, the court may treat an application for review as analogous to a notice of appeal for the purpose of grounding an application for stay of execution, where the application for review stands a reasonable likelihood of success.
Civil Procedure — Review — Special reasons required before review is treated as analogous to a notice of appeal
Before a court can treat an application for review as analogous to a notice of appeal, the applicant must advance special reasons why this should be so; the remaining considerations, including that the review would be rendered nugatory and a serious threat of execution, depend on the likelihood of success of the review.
Constitutional Law — Right to a Fair Hearing — Article 28 — Cancellation of a registered title without a hearing
The right to a fair hearing under Article 28 of the Constitution is a non-derogable right going to the validity of a judgment; where a registered proprietor's title is cancelled without affording him or his successors an opportunity to be heard, the resulting judgment is voidable at the instance of the unheard party.
Civil Procedure — Stay of Execution — Conditions for grant
An applicant for a stay of execution must establish a likelihood of success or a prima facie case of a right of appeal, and that he will suffer irreparable damage or the appeal be rendered nugatory if the stay is refused; where these are not established the court considers where the balance of convenience lies.

Legislation cited (11)

  • Judicature (Supreme Court) Rules r.2(2)
  • Judicature (Supreme Court) Rules r.6(2)(b)
  • Judicature (Supreme Court) Rules r.35(1)
  • Judicature (Supreme Court) Rules r.42
  • Judicature (Supreme Court) Rules r.43(1)
  • Judicature (Supreme Court) Rules r.50
  • Judicature (Supreme Court) Rules r.72
  • Constitution of Uganda art.28(1)
  • Constitution of Uganda art.44(c)
  • Constitution of Uganda art.132(2)
  • Judicature Act s.4

Cases cited (17)

  • Theodore Ssekikubo and Others v Attorney General (Constitutional Application No. 6 of 2013)
  • Akankwasa Damian v Uganda (Constitutional Application No. 7 & 9 of 2011)
  • Kiganda John v Tayebwa Robert, Yakobo Senkungu and Others (Civil Application No. 16 of 2017)
  • Belex Tours & Travel Ltd v Crane Bank Ltd (Miscellaneous Application No. 21 of 2015)
  • Eddie Kwizera vs. Attorney General
  • Electoral Commission v Eddie Kwizera (Constitutional Application No. 3 of 2020)
  • 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 v R. Raja and Sons [1966] EA 313
  • NPARI v General Parts (U) Ltd (Miscellaneous Application No. 08 of 2000)
  • Orient Bank Ltd v Fredrick Zaabwe & Another (Civil Application No. 17 of 2007)
  • Isaya Kalya & 2 Others v Moses Macekenyu Ikagobya (Miscellaneous Application No. 28 of 2015)
  • Olim Moses v Uganda (Miscellaneous Application No. 14 of 2018)
  • Bilamisi Namuddu v Rwabugonde Godfrey (Civil Appeal No. 16 of 2014)
  • Kalungulu John Malovu & Another v Godfrey Rwabugonde (Civil Application No. 4 of 2019)
  • David Muhenda v Humprey Mirembe (Civil Application No. 5 of 2012)
  • Michael Mabike v The Law Development Centre (Miscellaneous Civil Application No. 14 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.