Wakilii

Baguma Patrick v Sanyu Phiona (Civil Application 452 of 2023)

Court of Appeal · [2024] UGCA 28 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion before a single Justice of the Court of Appeal for a temporary order staying execution pending disposal of a civil appeal
Decision
Stay of execution granted pending determination of Civil Appeal No. 265 of 2022, on condition the applicant deposits 10% of the respondent's costs as security for due performance

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Citations rising — 3 citing cases on record, 3 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

On a preliminary objection that the application should first have been made to the High Court, the single Justice held that under rule 42(2) of the Court of Appeal Rules the court may entertain an application to safeguard the right of appeal notwithstanding no prior High Court application, and dismissed the objection. On the merits, although the applicant failed to prove substantial loss with cogent evidence, he had lodged a notice of appeal, acted without undue delay, and shown an arguable appeal. Finding security for due performance not a mandatory precondition under Margaret Kato v Nalwoga, the court granted the stay on condition the applicant deposit 10% of the respondent's costs as security.

Outcome

Stay of execution granted pending determination of Civil Appeal No. 265 of 2022, on condition the applicant deposits 10% of the respondent's costs as security for due performance

Facts

The applicant obtained an adverse decision in a judicial review application in the High Court at Masindi, which was dismissed with costs to the respondent. He lodged Civil Appeal No. 265 of 2022, pending before the Court of Appeal. Rather than first applying to the High Court, the applicant came directly to the Court of Appeal seeking a stay of execution of the decree and costs arising from the underlying cause (HCMC No. 07 of 2022). A notice to show cause why execution should not issue had been served, indicating the parties were to appear on 23 August 2023 regarding attachment and sale of immovable property. The applicant filed this application on 4 August 2023, before that date, asserting that his livelihood depended on his salary, his only source of income, and that he had no other property liable to execution. The respondent contended the applicant had not proved substantial loss, had not deposited security for costs, and had bypassed the High Court.

Issues

  1. Whether the application for a stay of execution was incompetent for not having first been made to the High Court.
  2. Whether the applicant satisfied the conditions for the grant of a stay of execution pending appeal.

Orders

  • Preliminary objection dismissed.
  • An order for stay of execution of the decree and orders arising from HCMC No. 07 of 2022 is granted pending the hearing and final determination of Civil Appeal No. 265 of 2022.
  • The costs of this application shall abide the outcome of the appeal.
  • The applicant is ordered to take all steps necessary to ensure that his appeal is ready for hearing at the earliest time possible.
  • The applicant shall deposit 10% of the costs allowed for the respondent as security for due performance of the decree.

Rules and key headnotes

Civil Procedure — Stay of Execution — Jurisdiction — Application made directly to the Court of Appeal without prior application to the High Court
Notwithstanding rule 42(1) of the Court of Appeal Rules requiring that an application that may be made either in the court or the High Court be made first in the High Court, rule 42(2) empowers the court to entertain an application under rule 6(2)(b) in order to safeguard the right of appeal even though no such application was first made to the High Court.
Civil Procedure — Stay of Execution — Conditions for grant
A stay of execution pending appeal is a discretionary order, granted where the applicant has lodged a notice of appeal, substantial loss may result unless the stay is granted, the application was made without unreasonable delay, and the appeal has a likelihood of success such that it would be rendered nugatory if execution proceeds.
Civil Procedure — Stay of Execution — Substantial loss — Burden and standard of proof
It is not enough to assert that substantial loss will result; the applicant must specify the kind of loss and adduce cogent evidence satisfying the court that refusing a stay would be unjust and inequitable, substantial loss being loss that cannot be quantified by particular monetary compensation.
Civil Procedure — Stay of Execution — Likelihood of success — Arguable appeal
At the stay stage the applicant need not demonstrate that the appeal will succeed, only that it is not frivolous or vexatious; an arguable appeal is one that ought to be argued fully before the court, and the court must avoid making definitive findings of fact or law that would embarrass the hearing of the main appeal.
Civil Procedure — Stay of Execution — Security for due performance — Not a mandatory precondition
There is no requirement under the rules for an applicant to deposit security for due performance of a decree before the court may exercise its powers under rule 6(2)(b); the imposition of such security is a discretionary rule of practice, and the court may order it as the justice of the case requires.

Legislation cited (10)

Cases cited (11)

  • Adonia v Mutekanga [1970] EA 429
  • Dr. Ahmmed Muhammed Kisuule v Greenland Bank (in liquidation) (Supreme Court Civil Appeal No. 7 of 2010)
  • John Baptist Kawanga v Namyalo Kevina & Anor (Miscellaneous Application No. 12 of 2017)
  • Cotton Marketing Board v Cogecot Cotton Co. SA [1997-1998] EA 312
  • Olok Francis v Reverend William Pasha (Court of Appeal Civil Application No. 059 of 2015)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Civil Application No. 341 of 2013)
  • Hon. Ssekikubo & Ors v Attorney General & Ors (Constitutional Application No. 07 of 2014)
  • Tropical Commodities Suppliers Ltd & Ors v International Credit Bank Ltd (in liquidation) [2004] 2 EA 331
  • Stanley Kang'ethe Kinyanjui v Tonny Ketter and 5 Others [2013] eKLR
  • Beeline Travel Care (U) Ltd & Anor v Finance Trust Bank (Court of Appeal Civil Application No. 67 of 2023)
  • Margaret Kato and Anor v Nuulu Nalwoga (Supreme Court Civil Miscellaneous Application No. 11 of 2011)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Baguma Patrick v Sanyu Phiona (Civil Application 452 of 2023) [2024] UGCA 28 (2 February 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.