Wakilii

Anne Rose Magezi v Ndirabona Kyoyetere [2026] UGHC 684

High Court · 2026 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Chamber summons application for stay of execution of a High Court appellate judgment and decree, and stay of pending execution proceedings, pending determination of an appeal to the Court of Appeal
Decision
Application for stay of execution dismissed as res judicata, vexatious and an abuse of process; supporting affidavit struck out; costs to the respondent

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Holding

The applicant sought a High Court stay of execution after the Court of Appeal had dismissed an identical stay application for her non-appearance. The Court held that a dismissal for non-appearance, where the applicant had notice of the hearing, operates as a final determination, so the fresh application was barred by res judicata under section 7 of the Civil Procedure Act and amounted to an abuse of process; the proper remedy was reinstatement or review in the Court of Appeal. Citation of the wrong rules was not fatal, given article 126(2)(e) and absence of prejudice. However, where the authenticity of an affidavit is challenged and the deponent fails to submit to cross-examination, the affidavit may be struck out, leaving the application without evidential foundation. Application dismissed with costs.

Outcome

Application for stay of execution dismissed as res judicata, vexatious and an abuse of process; supporting affidavit struck out; costs to the respondent

Facts

The applicant sued the respondent in the Chief Magistrate's Court of Jinja (Civil Suit No. 031 of 2007) claiming four acres at Musima village, Wanyange Parish, Mafubira sub-county, Jinja District as part of her late husband's estate. On 13 June 2016 the Magistrate found for her, ordered eviction of the respondent, and awarded UGX 10,000,000 general damages, UGX 100,000 for eucalyptus trees, interest at 8% per annum and costs. The applicant took vacant possession and sold the land. On 8 May 2019 the High Court (HCCA No. 074 of 2016) allowed the respondent's appeal, set aside the Magistrate's judgment, declared the respondent owner and ordered the applicant to vacate the four acres. The applicant appealed to the Court of Appeal (Civil Appeal No. 267 of 2019) and filed Miscellaneous Application No. 310 of 2019 there for stay of execution; that application was dismissed on 20 June 2025 for her non-appearance, and she took no steps to reinstate it. The respondent then commenced execution proceedings (EMA No. 0309 of 2025). The applicant filed the present application in the High Court seeking substantially the same stay. The respondent challenged the authenticity of the signature on her supporting affidavit; leave to cross-examine was granted but she did not attend.

Issues

  1. Whether the application for stay of execution was barred by res judicata because the Court of Appeal had earlier dismissed a similar application for non-appearance of the applicant.
  2. Whether citing the wrong provisions of the Civil Procedure Rules rendered the application incurably defective and incompetent.
  3. Whether the supporting affidavit should be struck out where the deponent's signature was challenged and she failed to appear for cross-examination.
  4. Whether the application was frivolous, vexatious and an abuse of the process of court.

Orders

  • The respondent's preliminary objections are upheld.
  • The applicant's supporting affidavit is struck out.
  • The Application is dismissed in its entirety as vexatious and an abuse of the court process.
  • The applicant shall pay the respondent's costs of the application.

Rules and key headnotes

Civil Procedure — Res Judicata — Dismissal for Non-Appearance as a Final Determination
A dismissal of an application for non-appearance, where the applicant had notice of the hearing date and failed to attend, operates as a final determination of that application, and a fresh application for substantially the same relief between the same parties is barred by res judicata under section 7 of the Civil Procedure Act.
Civil Procedure — Abuse of Process — Forum Shopping After Dismissal by a Superior Court
A litigant whose application has been dismissed by the Court of Appeal must seek reinstatement or review before that court, and cannot circumvent the dismissal by filing a fresh application for the same relief in the High Court; to do so is an abuse of the process of court.
Civil Procedure — Pleadings — Citation of Wrong Enabling Provision Not Necessarily Fatal
Where the substance of an application and the relief sought are clear from the pleadings, the court has jurisdiction to grant that relief and the opposing party suffers no prejudice, the citation of a wrong provision of the Civil Procedure Rules does not render the application incurably defective, having regard to article 126(2)(e) of the Constitution.
Evidence — Affidavits — Failure to Submit to Cross-Examination on Disputed Signature
Where the authenticity of an affidavit is challenged and the deponent, having been granted or directed to attend cross-examination, fails to appear without satisfactory explanation, the court may draw an adverse inference and strike out the affidavit, leaving the application without evidential foundation.
Civil Procedure — Stay of Execution Pending Appeal — Conditions Under Order 43 Rule 4
An appeal does not itself operate as a stay of execution; a stay pending appeal requires a pending arguable appeal, proof that substantial loss may result to the applicant, that the application was made without unreasonable delay, and that security has been given for due performance of the decree.

Legislation cited (9)

Cases cited (11)

  • Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 3 of 2014)
  • Kyazze v Busingye (Civil Appeal No. 18 of 1990)
  • Hamsa Industries Ltd v Tadjir Hussein and 2 Others (Civil Appeal No. 19 of 2018)
  • Nalutanga vs Eden Ltd. & O'rs MA 7/2017
  • Mugene vs Akankwasa [2008] HCB 160
  • Membe vs. Magoga [2009] HCB 82
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Civil Application No. 347 of 2013)
  • Maniraguha v Nkundiye (Civil Appeal No. 23 of ...) [2019] UGCA
  • Nile Breweries Limited v Uganda Revenue Authority (Miscellaneous Application No. 583 of 2026)
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR
  • Microsoft Corporation v Mitsumi Computer Garage Ltd & Another (2007) eKLR

Full judgment

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

Anne Rose Magezi v Ndirabona Kyoyetere [2026] UGHC 684 (15 June 2026)
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.