Wakilii

Andrew Byakutaga and Another v M S Kabega, Bogezi & Bukenya Advocates (Miscellaneous Application No. 0356 of 2025)

High Court · [2025] UGCOMMC 92 · 2025 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of judgment pending appeal to the Court of Appeal
Decision
Stay of execution granted conditional upon deposit of 40% of decretal sum or bank guarantee within 30 days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court granted a stay of execution of the decree in Civil Suit No. 965/2020 pending disposal of the appeal in the Court of Appeal. The applicants satisfied most requirements for a stay: a notice of appeal was filed without unreasonable delay, and there was an imminent threat of execution. However, the applicants failed to provide a memorandum of appeal to demonstrate likelihood of success. As a condition for the stay, the court ordered the applicants to deposit 40% of the decretal sum or provide a bank guarantee within 30 days.

Outcome

Stay of execution granted conditional upon deposit of 40% of decretal sum or bank guarantee within 30 days

Facts

The respondent law firm entered into a fee agreement with the applicants to negotiate payment from Government of Uganda for the second applicant's equity in Kinyara Sugar Works Limited. The respondent was entitled to 20% of sums received. Government paid UGX 6,250,000,000, of which the applicants paid 20% on UGX 5,000,000,000, leaving a balance of UGX 250,000,000. An outstanding balance of UGX 26,750,000,000 remained unpaid by Government. The respondent sued and obtained judgment for UGX 5,749,000,000 on 28 January 2025. The respondent commenced execution proceedings. The applicants filed a notice of appeal on 6 February 2025 and this application for stay of execution on 24 February 2025.

Issues

  1. Whether this application raises sufficient grounds for an order of stay of execution?
  2. Whether the applicants should deposit security for the due performance of the decree?
  3. Whether there are any remedies available to the parties?

Orders

  • A stay of execution of the decree vide Civil Suit No. 965/2020 M/s Kabega, Bogezi & Bukenya Advocates vs Bunyoro Kingdom & Anor pending disposal of the appeal in the Court of Appeal.
  • As a pre-condition for the stay of execution, the applicants shall deposit before this court 40% of the decretal sum as security for due performance of the decree; or a bank guarantee of the same sum, within 30 days from the date of delivery of this ruling.
  • Costs will abide the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution — Requirements for Grant
An applicant seeking stay of execution pending appeal must satisfy the court that: (1) a notice of appeal has been lodged; (2) the appeal has a high likelihood of success; (3) substantial loss may result to the applicant unless the stay is granted; and (4) the application has been brought without unreasonable delay. It is not mandatory that all conditions be met before a stay is granted; each application should be handled on its merits according to the circumstances of the particular case.
Civil Procedure — Stay of Execution — Likelihood of Success — Memorandum of Appeal Required
To demonstrate that an appeal has a likelihood of success, the applicant must provide the court with a memorandum of appeal setting out the grounds of appeal. The court must be satisfied that the prospects of the appeal succeeding are not remote but that there is a realistic chance of succeeding. In the absence of a memorandum of appeal, the court cannot assess whether the appeal is arguable or merely frivolous.
Civil Procedure — Stay of Execution — Substantial Loss — Money Decrees
Payment of a money decree is not a loss per se. To satisfy the requirement of substantial loss, the applicant must demonstrate that the harm caused would not only be substantial but also irreparable. Where the respondent is not shown to be impecunious, any payment made in execution of a money decree would be reversible in the event that the applicant succeeds in the appeal.
Civil Procedure — Stay of Execution — Security for Due Performance of Decree
The requirement for security for due performance of a decree should not stifle an appeal. The court has discretion to determine a just and fair amount of security, considering all the circumstances of the case. In granting a stay of execution, the court must balance the need to uphold the respondent's right to be protected from the risk that the appellant may not be able to satisfy the decree, with the appellant's right to access the courts.
Civil Procedure — Stay of Execution — Discretionary Power of Court
The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. The general principle is that if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appellate court reverse the judge's decision. The court must balance the equities between the parties and ensure that no undue hardship is caused to a decree holder due to the stay of execution.

Legislation cited (4)

Cases cited (12)

  • Dr. Ahmed Kisule v Greenland Bank (in Liquidation) (Supreme Court Civil Application No. 7 of 2010)
  • Nahurira Haam and 2 Others v Lwanga Mike (Court of Appeal Civil Application No. 1021 of 2023)
  • Junaco (T) Limited and Others v DFCU Bank Limited (Miscellaneous Application No. 0027 of 2023)
  • Karuhanga Geoffrey v Tulihamu Budongo Sacco (Miscellaneous Application No. 0108 of 2022)
  • Hon Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 03 of 2014)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Civil Application No. 341 of 2013)
  • Formula Feeds Limited and 3 Others v KCB Bank Limited (Miscellaneous Application No. 1647 of 2022)
  • Tropical Commodities Suppliers Ltd and Others v International Credit Bank Ltd (In Liquidation) (2004) 2 EA 331
  • Kabarema Adonia v Natukunda Marion (Miscellaneous Application No. 0264 of 2021)
  • DFCU Bank Ltd v Dr. Ann Persis Nakate Lussejere (Court of Appeal Civil Appeal No. 29 of 2003)
  • John Baptist Kawanga v Namyalo Kevina and Another (Miscellaneous Application No. 12 of 2017)
  • Butt v Rent Restriction Tribunal (1982) KLR 417

Full judgment

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Andrew Byakutaga and Another v M S Kabega, Bogezi & Bukenya Advocates (Miscellaneous Application No. 0356 of 2025) [2025] UGCommC 92 (15 May 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.