Wakilii

Asiya v Lubambo (Miscellaneous Application No. 1123 of 2022)

High Court · [2023] UGHCLD 11 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending determination of an application for leave to appeal out of time
Decision
Application for stay of execution dismissed with costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application for stay of execution. Although the applicant filed a notice of appeal out of time and a subsequent application for leave to appeal, the court found she had not diligently pursued that application for approximately two years. The court held the stay application was intended to delay and defray justice rather than preserve rights pending appeal.

Outcome

Application for stay of execution dismissed with costs to the respondent

Facts

The applicant filed Civil Suit No. 78 of 2015 against the respondent and judgment was entered against her in her absence. She filed a notice of appeal out of time on 20 December 2019 and subsequently filed Miscellaneous Application No. 103 of 2021 in the Court of Appeal seeking leave to appeal out of time. The respondent commenced execution proceedings, and the applicant sought to stay execution pending determination of her application for leave to appeal. The dispute concerned property in Banda near Kyambogo, Nakawa Division. The respondent contended the property was his and had been confirmed as such by the High Court in its 2 October 2019 judgment, while the applicant claimed it was gifted to her by her late mother in 1998. The applicant had constructed 13 rental units on the property from which she collected rent. The application for leave to appeal out of time was filed in April 2021 but had not been pursued since filing.

Issues

  1. Whether there is a pending appeal to support the application for stay of execution.
  2. Whether the applicant would suffer substantial loss if execution is not stayed.
  3. Whether the application for stay was made without unreasonable delay.
  4. Whether the applicant has given security for due performance of the decree.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Stay of Execution — Diligent Prosecution of Appeal
An applicant seeking stay of execution pending appeal must demonstrate diligent prosecution of the underlying appeal or application for leave to appeal. Where an application for leave to appeal out of time has lain dormant for approximately two years without follow-up, the court may refuse stay on grounds that the application is intended to delay and defray justice.
Civil Procedure — Stay of Execution — Requirements for Grant
For an application for stay of execution pending appeal to succeed, the applicant must demonstrate: (1) that a notice of appeal has been lodged; (2) that substantial loss may result unless stay is granted; (3) that the application has been made without unreasonable delay; and (4) that the applicant has given security for due performance of the decree.
Civil Procedure — Notice of Appeal — Sufficient to Found Stay
A notice of appeal is a sufficient expression of an intention to file an appeal and such action is sufficient to found the basis for grant of orders of stay in appropriate cases.

Legislation cited (4)

Cases cited (5)

  • Singh v Runda Coffee Estates Limited [1966] EA
  • Lawrence Musitwa Kgazze v Eunice Busingye (Supreme Court Criminal Appeal No. 18 of 1990)
  • Hon. Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 003 of 2014)
  • Attorney General of the Republic of Uganda v The East African Law Society and Another (EACA Application No. 7 of 2013)
  • Nakityo Teddy v Nakamya Syluia (Miscellaneous Application No. 929 of 2022)

Full judgment

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

Asiya_v_Lubambo_(Miscellaneous_Application_No._1123_of_2022)_[2023]_UGHCLD_11_(19_January_2023)
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.