Kellen Muhimbise v Mohammed Saleh Ali and Another (Civil Application 61 of 2021)

Supreme Court · [2023] UGSC 80 · 2023 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to the Supreme Court for stay of execution of a Court of Appeal judgment pending appeal

Decision

Stay of execution granted until determination of the applicant's appeal in the Supreme Court

The full judgment

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Holding

The Supreme Court granted the applicant's application for stay of execution, finding she had satisfied all five conditions: lodgment of a notice of appeal and request for proceedings; an appeal that was neither incompetent nor frivolous and raised points meriting consideration; irreparable loss because eviction would render the appeal nugatory; the balance of convenience favouring the applicant in possession of the suit land; and filing without undue delay. The court rejected the respondent's objection that the applicant was in contempt of a conditional temporary injunction order, holding that non-compliance related only to that order, which had been overtaken by events upon determination of the suit and could not bar the application.

Facts

The applicant was the registered proprietor of land on Lugard Road, Fort Portal, which she bought from the 2nd respondent and was registered in December 2008. The 2nd respondent stole her certificate of title and pledged it as security for a loan obtained by his company from Cairo International Bank. On default, the land was transferred to the bank and subsequently to the 1st respondent. The applicant sued in the High Court, which found the 1st respondent to be a bona fide purchaser for value without notice of fraud, dismissed her suit, allowed the 1st respondent's counterclaim, and ordered her eviction. The 2nd respondent admitted the theft and deposited compensation in court. The Court of Appeal dismissed her appeal. The applicant filed a notice of appeal to the Supreme Court and sought a stay of execution. She and her family remain in actual possession of the suit land, and the 1st respondent had obtained an eviction order.

Issues

Whether this is a proper case to stay execution of the Court of Appeal's judgment pending the applicant's appeal to the Supreme Court.
Whether the applicant's alleged contempt of a conditional temporary injunction order of the High Court bars the grant of a stay of execution.
Whether the applicant is entitled to the costs of the application.

Orders

Order staying execution of the judgment and orders of the Court of Appeal in Civil Appeal No. 222 of 2014 dated 23rd September 2014 until determination of the applicant's appeal pending in the Supreme Court.
Costs shall be in the cause.

Key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant Pending Appeal

An applicant for stay of execution pending appeal must satisfy five conditions: lodgment of a notice of appeal and a request for certified proceedings; that the appeal has a high likelihood of success or makes out a prima facie case; that the applicant will suffer irreparable loss or the appeal be rendered nugatory if the stay is refused; failing the second and third, that the balance of convenience favours the applicant; and that the application was lodged without undue delay.

Civil Procedure — Stay of Execution — Likelihood of Success Without In-Depth Merits Review

In determining whether an intended appeal has a high likelihood of success or makes out a prima facie case, the court will not indulge in an in-depth consideration of the merits; the applicant satisfies this condition by showing that the appeal is neither incompetent nor frivolous and raises points that merit consideration.

Civil Procedure — Contempt of Court — Conditional Injunction Overtaken by Events

Non-compliance with a conditional temporary injunction order relates to that order alone and not to subsequent proceedings; where the order has been overtaken by events upon final determination of the main suit, the alleged contempt becomes irrelevant and cannot be used to bar a later application such as one for stay of execution.

Legislation cited (3)

Judicature (Supreme Court Rules) Directions r.6(2)(b)
Judicature (Supreme Court Rules) Directions r.72
Judicature (Court of Appeal Rules) Directions r.86(1)

Cases cited (5)

Attorney General v Kwizera (Constitutional Application No. 1 of 2020)
Kwizera v Attorney General (Constitutional Applications Nos. 1 and 3 of 2020)
Dr. Ahmed Muhammed Kisuule vs. Greenland Bank (in Liquidation)
Hon. Theodore Ssekikubo & Others vs. The Attorney General and Another
Lubega v Attorney General and 2 Others (Constitutional Applications Nos. 31 and 32 of 2011)

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.