Wakilii

Airtel Uganda Limited v Garfield Spence a.k.a. Konshens & Mtech Limited (Civil Application 458 of 2024)

Court of Appeal · [2025] UGCA 217 · 2025 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the Court of Appeal (single Justice) for stay of execution of a High Court decree pending appeal, following a conditional stay granted by the High Court
Decision
Application for stay of execution granted; execution of the High Court decree stayed pending determination of Civil Appeal No. 1639 of 2023

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The single Justice held that the Court of Appeal's concurrent jurisdiction to stay execution is not confined to cases where the High Court refused a stay, but extends to a conditional stay the applicant finds harsh or unconscionable. Declining to follow Asante Aviation and reading Lawrence Musiitwa Kyazze as non-exhaustive, the Court rejected the res judicata objection. On the merits, the applicant had filed a notice and record of appeal raising triable issues on damages and liability, faced irreparable loss because the respondents were foreigners without known assets in the jurisdiction, and the balance of convenience favoured it. The stay was granted pending determination of Civil Appeal No. 1639 of 2023.

Outcome

Application for stay of execution granted; execution of the High Court decree stayed pending determination of Civil Appeal No. 1639 of 2023

Facts

The High Court (Commercial Division) found Airtel Uganda Limited jointly and severally liable, with ONMobile Global Limited, for infringing the 1st respondent's copyright in eight songs, awarding USD 180,000 general damages, interest, exemplary damages and costs. Airtel filed a notice of appeal and later Civil Appeal No. 1639 of 2023. The 1st respondent's bill of costs was taxed at UGX 27,000,000. Airtel applied to the High Court for a stay of execution; the High Court granted what it termed a partial stay, restraining the respondents from recovering more than 70% of the decretal sums pending the appeal, with each party bearing its own costs. Considering the condition harsh, Airtel applied to the Court of Appeal for a stay. The 1st respondent was a Jamaican citizen resident in Florida and the 2nd respondent a Kenyan company, both said to have no known assets within the jurisdiction capable of attachment should the appeal succeed.

Issues

  1. Whether the application for stay of execution was improperly before the Court of Appeal and barred by res judicata, given that the High Court had already granted a conditional stay.
  2. Whether the Court of Appeal's concurrent jurisdiction to grant a stay of execution is available only where the High Court has refused a stay.
  3. Whether the applicant had satisfied the conditions for the grant of a stay of execution pending appeal.

Orders

  • Execution of the judgment and decree in Civil Suit No. 0545 of 2015 against the Applicant is stayed pending the hearing and final determination of Civil Appeal No. 1639 of 2023 by the Court of Appeal.
  • The costs of this application shall abide the outcome of the said appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution — Concurrent Jurisdiction — Scope
The concurrent jurisdiction of the Court of Appeal to grant a stay of execution is not confined to cases where the High Court has refused a stay; it also extends to scenarios where the High Court granted a conditional stay on terms the applicant considers harsh or unconscionable, or which render the stay a mockery.
Civil Procedure — Res Judicata — Fresh Stay Application after Conditional Grant
A preliminary objection that a fresh application for stay of execution in the Court of Appeal is barred by res judicata fails where the matter falls within the Court of Appeal's concurrent jurisdiction over stays of execution following a conditional grant by the High Court.
Civil Procedure — Stay of Execution — Conditions for Grant
An applicant for a stay of execution must establish that a notice of appeal has been lodged, that the appeal has a likelihood of success or a prima facie right of appeal, that irreparable damage will result or the appeal will be rendered nugatory if a stay is refused, that the balance of convenience favours a stay, and that the application was instituted without delay.
Civil Procedure — Stay of Execution — Irreparable Loss — Foreign Respondent without Known Assets
Where a respondent is a foreigner without known assets within the jurisdiction, an applicant may establish irreparable loss by showing that recovery of decretal sums paid over would be difficult should the appeal succeed, and the respondent bears the evidential burden to rebut that claim with credible evidence.
Civil Procedure — Stay of Execution — Vigilance of Applicant
A litigant who displays vigilance by proactively following up certification of the record of proceedings and argues a stay application after the substantive appeal has already been filed elicits more favourable consideration than one who is less proactive.

Legislation cited (10)

  • Judicature Act s.12
  • Judicature (Court of Appeal) Rules S.I. No. 13-10 r.2(2)
  • Judicature (Court of Appeal) Rules S.I. No. 13-10 r.6(2)(b)
  • Judicature (Court of Appeal) Rules S.I. No. 13-10 r.42(1)
  • Judicature (Court of Appeal) Rules S.I. No. 13-10 r.42(2)
  • Judicature (Court of Appeal) Rules S.I. No. 13-10 r.43(1)
  • Judicature (Court of Appeal) Rules S.I. No. 13-10 r.43(2)
  • Judicature (Court of Appeal) Rules S.I. No. 13-10 r.44(1)
  • Judicature (Court of Appeal) Rules S.I. No. 13-10 r.53(2)
  • Civil Procedure Rules Order XXXIX r.4(3)

Cases cited (11)

Full judgment

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Airtel Uganda Limited v Garfield Spence a.k.a. Konshens & Mtech Limited (Civil Application 458 of 2024) [2025] UGCA 217 (13 June 2025)
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.