Abiro v Eswagu (Civil Application 370 of 2024)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

A single Justice of the Court of Appeal granted the applicant a stay of execution of High Court eviction orders pending her appeal. The application was unopposed: the respondent, though served, filed no affidavit in reply and did not appear, so the affidavit evidence stood unchallenged. The court held that executing the lower court's orders would deprive the applicant of land said to be her home and livelihood and would render the pending appeal nugatory, defeating the purpose of preserving the status quo. Noting the parties were clan relatives who had earlier attempted clan mediation, the court directed counsel to guide the parties to explore mediation. The application was allowed with costs to abide the outcome of the appeal.

Outcome

Stay of execution granted pending the determination of the appeal; parties directed to explore mediation

Facts

The applicant and the respondent are clan relatives disputing roughly three acres of land. The clan intervened and ruled that the land be divided equally, but the respondent went to the Local Council court, which compelled the clan to rescind its decision. The applicant sued in the Chief Magistrate's Court at Soroti, where a Magistrate Grade 1 found her to be a trespasser on part of the land, holding the respondent owned about one and a half acres. On the applicant's application the judgment was reviewed; on the respondent's later application the High Court reviewed the decision and issued an eviction order against the applicant. She lodged Civil Appeal No. 813 of 2023, which is yet to be fixed for hearing, and applied for a stay of execution. The respondent had already commenced execution proceedings in the lower court. The applicant claimed the land carried her house and garden, the source of her livelihood.

Issues

1. Whether the applicant was entitled to a stay of execution of the High Court orders pending the determination of her appeal.
2. Whether an application supported by affidavit evidence, where the respondent files no affidavit in reply, stands unchallenged.

Orders

• The application for stay of execution is allowed, with costs to abide the outcome of Civil Appeal No. 813 of 2023.
• Counsel for the parties are ordered to guide the parties to explore mediation of the dispute between them.

Rules and key headnotes

Cases cited (1)

• Makerere University v St. Mark Educational Institute Limited & Others [1994] KALR 26

The original judgment as reported. Read the original PDF before relying on any passage.