Wakilii

Kasolo v Delahaije (Civil Application 4 of 2023)

Supreme Court · [2023] UGSC 2 · 2023 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application before a single Justice of the Supreme Court for an interim order to stay execution pending the determination of a substantive application for stay of execution
Decision
Application for interim stay of execution dismissed with costs; preliminary objection overruled

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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

On a preliminary objection, the single Justice held that Rule 41(1) of the Supreme Court Rules does not confer concurrent jurisdiction on the Court of Appeal to hear an application for an interim stay pending appeal to the Supreme Court, and overruled the objection. On the merits, the application failed: although there was a competent notice of appeal, there was no substantive application for stay of execution pending (only an unnumbered, unsigned draft first page), so the interim application was incurably defective with no legs to stand on. There was no eminent threat because the grant of probate had already been resealed, rendering the application moot and academic. The application was dismissed with costs.

Facts

The respondent sued the applicant in the High Court (HCCS No. 235 of 2017); the suit was dismissed for lack of jurisdiction to grant probate over movable property of a deceased domiciled in the Netherlands, and the respondent was advised to obtain probate from the Netherlands. On appeal, the Court of Appeal decided in the respondent's favour in Civil Appeal No. 120 of 2019 (judgment of 23 January 2023), ordering the resealing of the uncertified grant of probate from the High Court of Kenya. The applicant filed a notice of appeal to the Supreme Court and sought an interim order restraining execution of the resealing order pending determination of a substantive application for stay of execution. On 9 February 2023 the Court of Appeal resealed the grant of probate. The respondent contended that the application was incompetent for bypassing the Court of Appeal, that no substantive application was actually pending, and that the matter had been overtaken by events.

Issues

  1. Whether the application for an interim stay of execution was incompetent for not having been made first to the Court of Appeal under Rule 41(1) of the Supreme Court Rules.
  2. Whether there was a competent notice of appeal.
  3. Whether there was a substantive application for stay of execution pending in the Supreme Court.
  4. Whether there was an eminent or serious threat of execution before the determination of the substantive application.
  5. Whether the application had been overtaken by events and rendered moot and academic.

Orders

  • Preliminary objection on the point of law overruled.
  • Application for the interim order of stay of execution dismissed.
  • Costs awarded against the applicant.

Key headnotes

Civil Procedure — Stay of Execution — Jurisdiction of the Supreme Court
Rule 41(1) of the Judicature (Supreme Court) Rules does not confer concurrent jurisdiction on the Court of Appeal to hear an application for an interim stay of execution pending an appeal to the Supreme Court; such jurisdiction would have to be specifically provided by law.
Civil Procedure — Interim Stay of Execution — Conditions for Grant
An interim order of stay of execution may be granted only where there is a competent notice of appeal, a substantive application for stay pending before the court, and an eminent or serious threat of execution before the substantive application is heard and determined.
Civil Procedure — Interim Stay of Execution — Dependence on a Substantive Application
An application for an interim stay of execution that is not founded on an existing substantive application for stay is incurably defective and has no legs to stand on; an unnumbered, unsigned single-page draft does not constitute a pending substantive application.
Civil Procedure — Mootness — Overtaken by Events
An application is moot and academic, with no practical legal value, where the very act sought to be restrained has already been completed, such that there is no longer any status quo to preserve.
Statutory Interpretation — Reading Provisions as a Whole — Rule of Harmony
The provisions of a statute or rules of court must be read together as an integral whole, with no provision destroying another but each sustaining the other, giving effect to the purpose, intention and effect of the makers; this is the rule of harmony, completeness and exhaustiveness.
Civil Procedure — Jurisdiction — Appellate Jurisdiction a Creature of Statute
There is no such thing as inherent appellate jurisdiction; appellate jurisdiction is a creature of statute and must be specifically created by law, and cannot be inferred or implied.

Legislation cited (10)

  • Judicature Act s.6(1)
  • Judicature (Supreme Court) Rules Directions S.I 13-10 r.2(1)
  • Judicature (Supreme Court) Rules Directions S.I 13-10 r.2(2)
  • Judicature (Supreme Court) Rules Directions S.I 13-10 r.6(2)
  • Judicature (Supreme Court) Rules Directions S.I 13-10 r.41(1)
  • Judicature (Supreme Court) Rules Directions S.I 13-10 r.41(2)
  • Judicature (Supreme Court) Rules Directions S.I 13-10 r.42
  • Judicature (Supreme Court) Rules Directions S.I 13-10 r.43(1)
  • Judicature (Court of Appeal Rules) Directions r.35(2)(c) and (d)
  • Constitution of Uganda Article 126(2)(e)

Cases cited (10)

  • Alcon International Ltd v. New Vision Printing and Sun Industries Ltd v. Taidin Hussein and 2 others Civil Application No. 19 of 2008
  • Attorney General v ... Consolidated ... IA ... of 2020 UGSC
  • Application No. 4 of 2018
  • Kwesiga and 2 others v. Senyonga and 2 others
  • Legal Brains Trust (LBT) Limited v. Attorney General of the Republic of Uganda (2012) KLR
  • David Wesley Tusingwire ... (appeal of 2002)
  • Attorney General of Tanzania v. Rev. Christopher Mtikila 2010 EA 13
  • Kwizera and Electoral Commission and ... (supra)
  • Laila Kaka Wallia and Others (Supra)
  • Hwang Sung Industries Limited v. Taidin Hussein and others ... Zubeda Mohammed and Another
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.