Wakilii

Baguma v Mbabazi (HCT – 01 – CV – MA – NO. 0018 OF 2017)

High Court · [2017] UGHCCD 155 · 2017 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal to the Court of Appeal
Decision
Application dismissed; applicant to vacate family residence as ordered by lower courts

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 pending appeal. The court held that the applicant failed to establish that he would suffer substantial loss if evicted from the family residence, particularly where the welfare of children was paramount and the children had been evicted from their family home. The applicant's interest could be protected by the lodged caveat and any loss could be atoned in damages. Filing a notice of appeal alone was insufficient ground to grant stay where the conditions under Order 43 Rule 4(3) were not satisfied.

Outcome

Application dismissed; applicant to vacate family residence as ordered by lower courts

Facts

The applicant and respondent were parties to family proceedings before the Family and Children Court (FPT-00-CV-FCC-019 of 2016), where orders were issued in favour of the respondent on 3 March 2016. The applicant appealed to the High Court (HCT-01-CV-CA-No. 003 of 2016) and judgment was delivered against him on 23 March 2017. The applicant filed a notice of appeal to the Court of Appeal and applied for stay of execution of the High Court judgment, which ordered him to vacate a family residence. The applicant had evicted the respondent and the children from the family home. The children, with their mother, were residing in alternative accommodation while the applicant remained in the family residence with other adult children. The applicant argued he would suffer substantial loss if required to find alternative accommodation and claimed the respondent might transfer the property into her name. The respondent opposed the application on grounds that the children's welfare was paramount and they had been unlawfully evicted from their family home.

Issues

  1. Whether the applicant satisfied the conditions for stay of execution under Order 43 Rule 4(3) of the Civil Procedure Rules.
  2. Whether the applicant would suffer substantial loss if stay of execution is not granted.
  3. Whether the application was made without unreasonable delay.
  4. Whether the applicant provided or offered adequate security for due performance of the decree.
  5. Whether the intended appeal has sufficient prospects of success to warrant a stay.
  6. Whether granting stay would prejudice the welfare of the children involved.

Orders

  • Application for stay of execution dismissed.
  • Costs awarded to the respondent.
  • Right of appeal explained.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant — Substantial Loss
An applicant seeking stay of execution must establish substantial loss, which refers to any loss of real worth or value, not merely nominal loss, and cannot be quantified by any particular mathematical formula but is rather a qualitative concept.
Civil Procedure — Stay of Execution — Conditions — Cumulative Requirements
For a court to grant stay of execution under Order 43 Rule 4(3) of the Civil Procedure Rules, the applicant must satisfy all three conditions cumulatively: that substantial loss may result unless the order is made; that the application has been made without unreasonable delay; and that security has been given for due performance of the decree or order. Satisfaction of only one or two conditions is insufficient.
Family Law — Children's Rights — Welfare Principle as Paramount Consideration
In all matters relating to children, the welfare and best interests of the child shall be paramount and must be given utmost priority over the interests of either parent. Where an application for stay of execution would compromise the welfare of children by keeping them from their family home, the children's constitutional rights under Articles 31(4) and 34(1) of the Constitution and Section 3 of the Children Act must prevail.
Civil Procedure — Stay of Execution — Notice of Appeal as Sufficient Expression of Intent
A notice of appeal is a sufficient expression of an intention to file an appeal and such an action is sufficient to found the basis for grant of orders of stay in appropriate cases. However, this must be applied on a case-by-case basis depending on the facts of each case, and the filing of a notice of appeal alone is not sufficient ground to grant stay where other conditions are not satisfied.
Civil Procedure — Stay of Execution — Sufficient Cause Requirement
Under Order 43 Rule 4(1) of the Civil Procedure Rules, an appeal does not operate as a stay of proceedings except where the court orders it for sufficient cause. The applicant must prove sufficient cause beyond merely having lodged an appeal.
Civil Procedure — Stay of Execution — Standard of Satisfaction
The word 'satisfied' in the context of stay of execution applications is a clear and simple one requiring no addition, subtraction, strengthening or weakening. A court must not be in a state of reasonable doubt when it is satisfied of the conditions for granting a stay.

Legislation cited (14)

Cases cited (12)

  • Hon. Theodore Ssekikubo & Others v The Attorney General and Another (Constitutional Application No. 06 of 2013)
  • Tropical Commodities and 2 Others v International Credit Bank Ltd (In Liquidation) (High Court Miscellaneous Application No. 379 of 2003)
  • Nalwoga Gladys v Edco Ltd & Another (Miscellaneous Application No. 07 of 2013)
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another (1982) HCB 11
  • Action Aid Uganda v Tibekanga (Industrial Court Labour Dispute Appeal No. 005 of 2014)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (SCCA No. 18 of 1990) [1992] IV KALR 55
  • Re M (an infant) (Adoption Cause No. 9 of 1995)
  • Rwabuhemba Tim Musinguzi v Harriet Kamakune (Civil Application No. 14 of 2009)
  • Imperial Royale Hotel Ltd & 2 Others v Ochan Daniel (Miscellaneous Application No. 111 of 2012)
  • Attorney General of the Republic of Uganda v The East African Law Society & Another (EACJ Application No. 1 of 2013)
  • Kizza Besigye v Yoweri Museveni and Electoral Commission (Petition No. 1 of 2001)
  • Blyth v Blyth [1966] AC 643

Full judgment

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

Baguma Vs Mbabazi (HCT – 01 – CV – MA – NO. 0018 OF 2017) [2017] UGHCCD 155 (30 November 2017)
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.