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Balende & Another v Seromba (Miscellaneous Application 117 of 2023)

High Court · [2024] UGHC 299 · 2024 Application Granted 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 from High Court judgment in Civil Suit No. 0080 of 2015
Decision
Execution of decree arising from Civil Suit No. 0080 of 2015 and EMA No. 5 of 2023 stayed pending appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted a stay of execution pending determination of an appeal to the Court of Appeal. The court found that the applicant satisfied the requirements under Order 43 rule 4 of the Civil Procedure Rules: a notice of appeal was filed timeously; substantial loss might result unless execution was stayed, evidenced by a Notice To Show Cause issued by the respondent; the application was made without unreasonable delay; and the appeal raised triable issues concerning adverse possession and continuous occupation of land. The court exercised its discretion to grant the stay without requiring security for due performance, balancing the appellant's right to appeal against the respondent's right to benefit from the decree.

Outcome

Execution of decree arising from Civil Suit No. 0080 of 2015 and EMA No. 5 of 2023 stayed pending appeal

Facts

The respondent obtained judgment in Civil Suit No. 0080 of 2015 concerning a land dispute. The respondent applied for execution vide EMA No. 5 of 2023 and issued a Notice To Show Cause why execution should not issue, returnable 1 June 2023. The applicant, unsuccessful in the main suit, filed a notice of appeal on 6 April 2023 (five days after judgment on 31 March 2023) and lodged Civil Appeal No. 328 of 2023 in the Court of Appeal. The appeal grounds challenged the trial judge's findings on adverse possession and continuous occupation of the suit land for over thirty years, and contested an award of general damages of UGX 50,000,000. The applicant then sought a stay of execution pending the appeal, arguing imminent threat of execution and that the appeal would be rendered nugatory if execution proceeded.

Issues

  1. Whether the applicant satisfied the requirements for grant of a stay of execution pending appeal.

Orders

  • Stay of execution granted pending determination of Civil Appeal No. 328 of 2023 in the Court of Appeal.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Stay of Execution — Requirements under Order 43 rule 4 of the Civil Procedure Rules
An applicant seeking stay of execution must satisfy four conditions: (1) that a notice of appeal has been lodged; (2) that substantial loss may result unless the stay is granted; (3) that the application has been made without unreasonable delay; and (4) that security for due performance of the decree or order has been given.
Civil Procedure — Stay of Execution — Notice of Appeal as Sufficient Expression of Intention
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.
Civil Procedure — Stay of Execution — Substantial Loss — Notice To Show Cause as Evidence of Imminent Threat
Substantial loss does not represent any particular amount or size and refers to any loss great or small of real worth or value as distinguished from a loss that is merely nominal. A Notice To Show Cause why execution should not issue issued by a respondent constitutes evidence of imminent threat of execution sufficient to demonstrate substantial loss.
Civil Procedure — Stay of Execution — Likelihood of Success — Triable Issues
Likelihood of success in an appeal does not mean that the appeal shall succeed but whether there are triable matters, whether there is merit in the case, and whether serious questions exist to be tried. An appeal is not frivolous or vexatious where it raises grounds such as adverse possession, continuous occupation, and excessive damages.
Civil Procedure — Stay of Execution — Security for Due Performance — Discretion of Court
Security for due performance is not a mandatory condition precedent for the grant of an order of stay of execution. Courts have discretion to grant a stay of execution without security for due performance, as insistence on security for the entire decretal amount is likely to stifle appeals. The court must balance the applicant's right to be heard on appeal with the respondent's right to benefit from the decree.

Legislation cited (8)

Cases cited (12)

  • Lawrence Musiitwa Kyazze v Eunice Businge (Civil Application No. 18 of 1990)
  • Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 03 of 2014)
  • Nabossa v Yagala & 4 Others (Miscellaneous Application No. 2699 of 2016)
  • Attorney General of Uganda v East African Law Society & Another (EACA Application No. 1 of 2013)
  • Kampala Capital City Authority v Mulangira Joseph (Miscellaneous Application No. 26 of 2016)
  • Tropical Commodities Supplies Ltd & 2 Others v International Credit Bank Ltd (In Liquidation) [2004] 2 EA 331
  • GAPCO Uganda Ltd v Kaweesa & Another (Miscellaneous Application No. 259 of 2013)
  • American Cyanamid v Ethicon [1975] ALL ER 504
  • Walusimbi Mustafa v Musenze Lukia (Miscellaneous Application No. 0232 of 2018)
  • DFCU Bank Ltd v Dr Ann Persis Nakate Lussejere (Civil Appeal No. 29 of 2003)
  • John Baptist Kawanga v Namyalo (Miscellaneous Application No. 12 of 2017)
  • Margarette Kato v Nalwo (Miscellaneous Application No. 11 of 2011)

Full judgment

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

Balende & Another v Seromba (Miscellaneous Application 117 of 2023) [2024] UGHC 299 (18 March 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.