Wakilii

All Ports Freight Service v Kamanyi and Sembuya (Civil Suit 409 95)

High Court · [1997] UGHC 24 · 1997 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of decree pending appeal
Decision
Stay of execution granted conditionally — applicant must deposit existing security and furnish additional security totalling the full decretal amount within 14 days, failing which the stay lapses

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that stay of execution granted on condition that the applicant deposit the leasehold title and furnish additional security of Shs.87,000,000 in cash or bank draft within 14 days. The court found that substantial loss could result if the colossal decretal sum of approximately Shs.250,000,000 was executed and not recoverable upon successful appeal. Security must equal the full decretal amount since the applicant is jointly and severally liable.

Outcome

Stay of execution granted conditionally — applicant must deposit existing security and furnish additional security totalling the full decretal amount within 14 days, failing which the stay lapses

Facts

The applicant/judgment debtor applied for stay of execution of a decree totalling approximately Shs.250,000,000. The decree was passed jointly and severally against two defendants. The applicant offered security in the form of an unencumbered leasehold property valued at Shs.75,000,000. The respondent/judgment creditor opposed the application, arguing that the security was insufficient and that payment of a money decree does not constitute substantial loss. The applicant had lodged an appeal and sought to prevent execution pending the appeal outcome.

Issues

  1. Whether the applicant satisfied the conditions under Order 39 Rule 4(3) of the Civil Procedure Rules for a stay of execution of the decree.
  2. Whether the applicant would suffer substantial loss if execution of the decree was not stayed.
  3. Whether the security offered by the applicant was sufficient for the purposes of granting a stay of execution.

Orders

  • Execution of the decree passed in HCCS No.409/95 stayed.
  • Title deed of leasehold property comprised in Plot 105 Kyadondo Block 273 Mengo valued at Shs.75,000,000 to be deposited in court as security.
  • Applicant to furnish additional security of Shs.87,000,000 within 14 days in cash or by bank draft to be deposited in court.
  • If the two conditions are not fulfilled, the order of stay shall lapse after 14 days.
  • Costs of the application to abide the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution — Jurisdiction of High Court
The High Court has inherent jurisdiction under Section 101 of the Civil Procedure Act to stay its own orders and decrees pending appeal.
Civil Procedure — Stay of Execution — Conditions under Order 39 Rule 4(3)
Before granting a stay of execution, the court must be satisfied that: (1) substantial loss may result to the applicant unless stay is made; (2) the application has been made without undue delay; and (3) security has been given by the applicant for the due performance of such decree as may ultimately be binding upon him. These conditions must be strictly complied with.
Civil Procedure — Stay of Execution — Substantial Loss
Substantial loss in the context of stay applications may be established where a colossal decretal sum may be paid and not recoverable in the event of a successful appeal, even though the general practice is that money decrees are not stayed because money paid can always be refunded. Each case must be considered on its merits.
Civil Procedure — Stay of Execution — Adequacy of Security
Security furnished for stay of execution must be equivalent to the full decretal amount that the applicant would be required to pay should the appeal fail. Where a decree is passed jointly and severally, the judgment creditor is at liberty to recover the full decretal sum from either defendant, and an applicant for stay must furnish security sufficient to satisfy the whole decree.
Civil Procedure — Stay of Execution — Form of Security
An unencumbered leasehold property is acceptable security for a stay of execution in a money decree because it can be sold and used for the due performance of the decree.

Legislation cited (2)

Cases cited (7)

  • Mafigiri Hari Kishore v Anoop Sunderali Treon (Supreme Court Civil Appeal No. 11 of 1988)
  • Lawrence Musitwa Kyazze v Eunice Businqye (Supreme Court Civil Appeal No. 18 of 1990)
  • Joanita Kaggwa Versus Olive Amelia Kawalya Kaggwa [Administration Cause No 27/79721]
  • Mugenyi & Co Advocates v National Insurance Corporation (Court of Appeal Civil Appeal No. 13 of 1984)
  • Jorepi Owoko v Edward Mugalu [1976] HCB 332
  • Miscellaneous Application No 664/96 Teddy Ssezi Cheeye Uganda Confidential Versus Enos Tumusiime
  • Joseph Owoko v Edward Mugalu [1976] HCB 332

Full judgment

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

All Ports Freight Service v Kamanyi and Sembuya (Civil Suit 409 _ 95) [1997] UGHC 24 (20 February 1997)
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.