Wakilii

Aziku and Others v Rokani (Miscellaneous Application No. 13 of 2021)

High Court · [2023] UGHCCD 84 · 2023 Application Granted (Conditional) AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of lower court order pending appeal, arising from Civil Appeal No. 009 of 2021
Decision
Execution stayed pending appeal, conditional upon deposit of security within 60 days

Observed later treatment

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Holding

The High Court granted a conditional stay of execution of lower court orders pending appeal. The court held that substantial loss would occur if execution proceeded, as the subject matter is land with commercial structures and tenants. Although the applicants failed to furnish security in their affidavit as required by Order 43 rule 4(3) of the Civil Procedure Rules, the court invoked Article 126(2)(e) of the Constitution to administer substantive justice. The stay was granted on condition that applicants deposit UGX 30,000,000 with the Registrar within 60 days. Failure to comply gives respondents liberty to proceed with execution.

Outcome

Execution stayed pending appeal, conditional upon deposit of security within 60 days

Facts

The applicants instituted Civil Suit No. 0011 of 2019 against the respondents for trespass to land, declaration of ownership, permanent injunction, damages and costs concerning land at Plot 33, Okudi Road, Moyo Town Council. The trial magistrate dismissed the suit on preliminary objection regarding limitation and failure to appoint a legal representative of the first defendant. Applicants filed Civil Appeal No. 009 of 2021 on 3 March 2021. Respondents commenced execution by filing a bill of costs for taxation and filed Civil Suit No. 0004 of 2021 with an application for temporary injunction against applicants' tenants. Applicants filed this stay application on 31 March 2021, seeking to preserve the status quo pending appeal. The ninth applicant has a commercial structure on the suit land and applicants have tenants on the property.

Issues

  1. Whether substantial loss may result to the applicants unless a stay of execution is granted.
  2. Whether the application has been made without unreasonable delay.
  3. Whether security has been given by the applicants for due performance of the decree.
  4. Whether Civil Suit No. 004 of 2021 should be stayed pending disposal of Civil Appeal No. 009 of 2021.

Orders

  • Application for stay of execution allowed subject to conditions.
  • Applicants to deposit UGX 30,000,000 with the Registrar High Court within 60 days as security for due performance of the decree.
  • If applicants fail to deposit the security within 60 days, respondents granted liberty to proceed with execution.

Rules and key headnotes

Civil Procedure — Stay of Execution — Substantial Loss — Land and Immovable Property
Where the subject matter of an appeal is land upon which commercial structures exist and from which the appellant derives income through tenants, substantial loss would result if execution is not stayed, as execution would render the appeal nugatory if successful.
Civil Procedure — Stay of Execution — Security for Due Performance — Failure to State Willingness in Affidavit
Failure to state willingness to furnish security in the supporting affidavit or application, though ordinarily fatal to a stay application under Order 43 rule 4(3) of the Civil Procedure Rules, may be excused under Article 126(2)(e) of the Constitution where the court is satisfied that substantive justice requires the grant of a conditional stay and security can be offered.
Civil Procedure — Stay of Execution — Paramount Duty of Court — Appeals Not to be Rendered Nugatory
It is the paramount duty of a court to which an application for stay of execution pending appeal is made to see that the appeal, if successful, is not rendered nugatory.
Civil Procedure — Stay of Execution — Security — Amount — Discretion of Court
Where security for due performance of the decree is required as a condition for stay of execution, the amount of security to be furnished is within the discretion of the court and need not correspond to the full decretal amount, particularly where the subject matter is immovable property.

Legislation cited (8)

Cases cited (5)

  • Sewankambo Dickson v Zziwa Abby (Miscellaneous Application No. 178 of 2005)
  • Tropical Commodities Suppliers Ltd & Others v International Credit Bank Ltd (In Liquidation) (Miscellaneous Application No. 379 of 2003)
  • DFCU Bank Ltd v Dr. Ann Persis Nakate Lusejjere (Civil Application No. 29 of 2003)
  • Walusimbi Mustafa v Musenze Lukia (Miscellaneous Application No. 232 of 2018)
  • Global Capital Save 2004 Ltd & Anor v Alice Okiror & Anor (Miscellaneous Application No. 485 of 2012)

Full judgment

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Aziku and Others v Rokani (Miscellaneous Application No. 13 of 2021) [2023] UGHCCD 84 (31 March 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.