Wakilii

Ankole Riverline Hotel Limited v Kakooza (Miscellaneous Application 317 of 2019)

Court of Appeal · [2019] UGCA 2106 · 2019 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for an interim order of stay of execution pending disposal of a substantive application and appeal
Decision
Interim order of stay of execution granted restraining eviction pending disposal of the substantive application and/or appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The single Judge held that the application for an interim order of stay was properly before the Court, the applicant having first sought a stay in the High Court under Rule 42(1). Relying on Ssekikubo v Attorney General, the Court reiterated that an interim order of stay requires a pending substantive application, a serious threat of execution before its hearing, and a notice of appeal. These conditions were satisfied: a notice of appeal was lodged, a substantive application and civil appeal were pending, and the applicant's uncontroverted evidence established a threat of eviction. The application was allowed and an interim order restraining eviction was granted pending disposal of the substantive matter.

Outcome

Interim order of stay of execution granted restraining eviction pending disposal of the substantive application and/or appeal

Facts

The applicant company owned property comprised in Freehold Register Volume 1235 Folio 6, Plot 89-91 Kabale Road, Mbarara, which it had mortgaged to Guaranty Trust Bank (U) Limited. Following an alleged breach of the financial arrangement, the bank allegedly sold the property to the respondent. Disputing the sale's legality, the applicant instituted High Court Civil Suit No. 54 of 2018 at Mbarara against the respondent, the bank and the Commissioner, Land Registration. The suit was dismissed on 28 March 2019 for absence of the applicant and its counsel following short hearing notice. Applications for reinstatement, review and stay in the High Court (Nos. 64, 243 and 94 of 2019) were dismissed on 16 September 2019 as an abuse of process. The applicant lodged a notice of appeal on 18 September 2019 and pursued a substantive application and civil appeal in the Court of Appeal. It alleged the respondent was taking steps to evict it and sought an interim order of stay. The respondent, though served, did not appear and filed no affidavit in reply.

Issues

  1. Whether the applicant satisfied the conditions for the grant of an interim order of stay of execution to stop its eviction from the suit property.

Orders

  • Application allowed.
  • Interim order issued restraining eviction of the applicant and those deriving title through it from the suit property comprised in Freehold Register Volume 1235 Folio 6, Plot 89-91 Kabale Road, Mbarara Municipality, until disposal of the substantive Miscellaneous Application No. 316 of 2019 and/or Civil Appeal No. 270 of 2019, whichever is disposed of earlier, or subject to any other order of the Court.
  • Costs of the application to abide the outcome of the substantive application and/or appeal.
  • The Registrar to fix the substantive Miscellaneous Application No. 316 of 2019 and/or Civil Appeal No. 270 of 2019 for hearing at the earliest date.

Rules and key headnotes

Civil Procedure — Interim Order of Stay of Execution — Conditions for Grant
An interim order of stay of execution or interim injunction may be granted where there is a substantive application pending, a serious threat of execution before the hearing of that substantive application, and a notice of appeal on record.
Civil Procedure — Court of Appeal Jurisdiction — Preservation of Right of Appeal
Rule 2(2) of the Rules of the Court of Appeal vests the Court with discretion to make such orders as may be necessary to achieve the ends of justice, and the preservation of the right of appeal is one such end of justice.
Civil Procedure — Stay of Execution — Prior Application to the High Court
An application for stay of execution is properly before the Court of Appeal where the applicant first sought a stay in the High Court, in compliance with Rule 42(1) of the Rules of the Court.
Evidence — Affidavit Evidence — Uncontroverted Averments
Where the applicant's assertions, including a threat of eviction, are not controverted by the respondent through an affidavit in reply or otherwise, the court may treat those assertions as proved.

Legislation cited (7)

  • Judicature Act s.10
  • Judicature Act s.12
  • Rules of the Court of Appeal r.2
  • Rules of the Court of Appeal r.2(2)
  • Rules of the Court of Appeal r.6(2)(b)
  • Rules of the Court of Appeal r.42(1)
  • Rules of the Court of Appeal r.43

Cases cited (2)

  • Matthew Rukikaire v Incafex Limited (Civil Application No. 11 of 2015)
  • Ssekikubo and 3 Others v Attorney General and Others (Constitutional Application No. 04 of 2014)

Full judgment

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

Ankole Riverline Hotel Limited v Kakooza (Miscellaneous Application 317 of 2019) [2019] UGCA 2106 (2 December 2019)
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.