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Ashiraf Kironde v Bank Of Africa Uganda Limited [2024] UGCOMMC 462

High Court · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of judgment pending appeal to Court of Appeal
Decision
Application for stay of execution dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Court dismissed the application for stay of execution pending appeal. The applicant failed to satisfy the majority of essential requirements under Order 43 rule 4(3) of the Civil Procedure Rules. The court found no imminent threat of execution, no substantial loss that could not be compensated by restitution, and no security deposited for due performance of the decree.

Outcome

Application for stay of execution dismissed

Facts

The applicant obtained a loan facility of UGX 880,000,000 from the respondent bank, secured by mortgages over various properties. Upon default, the respondent foreclosed and sold some mortgaged properties, then filed civil suit no. 0415 of 2014 to recover an outstanding balance of UGX 1,208,214,548. Judgment was entered in favour of the respondent on 9 January 2023 for UGX 705,301,666. The applicant filed civil appeal no. 0120 of 2023 in the Court of Appeal and subsequently this application for stay of execution on 8 April 2024 after being served with a taxation hearing notice on 5 April 2024.

Issues

  1. Whether the execution of the decree in civil suit no. 0415 of 2014 should be stayed pending the determination of the appeal.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Stay of Execution — Purpose and Requirements
An application for stay of execution pending appeal is designed to preserve the subject matter in dispute so that the appellant's right to appeal is safeguarded and the appeal if successful is not rendered nugatory.
Civil Procedure — Stay of Execution — Cumulative Conditions under Order 43 Rule 4(3)
All conditions laid down by Order 43 rule 4(3) of the Civil Procedure Rules must be fulfilled before execution can be stayed, namely that substantial loss may result to the applicant, the application has been made without unreasonable delay, and security has been given for due performance of the decree.
Civil Procedure — Stay of Execution — Imminent Threat of Execution
An order of stay will issue only if there is actual or presently threatened execution. There must be unequivocal evidence showing unconditional steps that convey a gravity of purpose and imminent prospect of execution such as extracting the decree, presenting and having a bill of costs taxed, applying for issuance of a warrant of execution, or issuing a notice to show cause why execution should not issue.
Civil Procedure — Stay of Execution — Substantial Loss Requirement
It is not enough to merely repeat words of the code and state that substantial loss will result. The kind of loss must be specified, details must be given, and the court's conscience must be satisfied that such loss will really ensue. Substantial loss must mean something in addition to and different from the ordinary loss to which every judgment debtor is necessarily subjected when deprived of property in consequence of losing a case.
Civil Procedure — Stay of Execution — Money Decrees and Substantial Loss
Execution of a money decree is ordinarily not stayed since satisfaction of a money decree does not amount to substantial loss or irreparable injury to the applicant where the respondent is not impecunious, as the remedy of restitution is available to the applicant in the event the appeal is allowed.
Civil Procedure — Stay of Execution — Security for Costs versus Security for Due Performance
The requirement and insistence on security for the entire decretal amount as security for due performance is likely to stifle appeals. Courts have resorted to making orders for security for costs, which is intended to operate as a shield against filing frivolous and vexatious appeals and to indemnify the judgment creditor in the event the appeal fails. A court can only dispense with the requirement of depositing security for costs in very exceptional circumstances.

Legislation cited (4)

Cases cited (12)

  • Lawrence Musiitwa v Itobu Margret (HCMA No. 0160 of 2022)
  • Ntege Mayambala v Christopher Mwanje (HCMA No. 72 of 1991)
  • Theodore Ssekikubo & others v Attorney General & others (Constitutional Application No. 03 of 2014)
  • Kyambogo University v Prof. Isiah Omolo Ndiege (C.A.C.A No. 341 of 2013)
  • Formula Feeds Ltd v KCB Bank Ltd (HCMA No. 1647 of 2022)
  • Baguma Paul T/A Panache Associates v Eng. Karuma Kagyina (HCMA No. 460 of 2020)
  • Orient Bank Ltd v Zaabwe & Others (HCMA No. 19 of 2006)
  • Tanzania Cotton Marketing Board v Coqecot Cotton Co. SA (1995-1998) 1 E.A 312
  • Bansidhav v Pribku Dayal AIR 41 1954
  • Kisaalu Joseph & 10 others v Nakintu May & Anor (Miscellaneous Application No. 105 of 2020)
  • Nkonge Rugadyain Shem Mpanga Mukasa & Anor v Kizza Clessy Barya (Miscellaneous Application No. 479 of 2021)
  • Wandera Micheal v Baguma Samalie (Miscellaneous Application No. 36 of 2021)

Full judgment

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

Ashiraf Kironde v Bank Of Africa Uganda Limited 2024 UGCommC 462 (2 December 2024)
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.