Wakilii

Balkudembe v Dr. Mayanja (Miscellaneous Application No. 205 of 2023)

High Court · [2023] UGHCLD 102 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal from judgment in HCCS No. 464 of 2017
Decision
Stay of execution granted pending appeal, conditional on deposit of 70% of decretal sum as security within 30 days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an application for stay of execution pending appeal will be granted where the applicant demonstrates a pending appeal, likelihood of substantial loss if execution proceeds, absence of unreasonable delay, and willingness to furnish security. Where the subject matter is land capable of permanent alienation and the appeal may be rendered nugatory, the court will exercise discretion in favour of the applicant. Application granted on condition that applicant deposits 70% of the decretal sum as security within 30 days.

Outcome

Stay of execution granted pending appeal, conditional on deposit of 70% of decretal sum as security within 30 days

Facts

The applicant was the unsuccessful party in HCCS 464 of 2017 in which the respondent obtained judgment declaring the applicant had no equitable interest in land at Kyadondo Block 795 Plot 1448 (now 4806) at Kyanja, Kampala, and that he was a trespasser. Court ordered the applicant to pay compensation of UGX 40,000,000, general damages of UGX 20,000,000, mesne profits of UGX 20,000,000, punitive damages of UGX 20,000,000, interest at 15%, and costs. The applicant filed a notice of appeal and applied for stay of execution, averring he had been in possession since 2012 and had constructed a storeyed commercial building with tenants on the property. The respondent commenced execution proceedings by extracting the decree and filing Execution Miscellaneous Application No. 0034 of 2023. The applicant sought stay pending appeal to prevent eviction and alienation of the property.

Issues

  1. Whether there is a pending appeal.
  2. Whether substantial loss may result to the applicant if the stay of execution is denied.
  3. Whether the application was made without unreasonable delay.
  4. Whether the applicant should furnish security for due performance of the decree.

Orders

  • Application for stay of execution granted.
  • Applicant to deposit 70% of the decretal sum in court as security for due performance of the decree within 30 days from the date of this ruling.
  • Miscellaneous Application No. 206 of 2023 seeking interim stay of execution overtaken by events.
  • Each party to bear its own costs.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant
An applicant seeking stay of execution pending appeal must demonstrate that a notice of appeal has been lodged, that substantial loss may result unless stay is granted, that the application has been made without unreasonable delay, and that the applicant is willing to furnish security for due performance of the decree.
Civil Procedure — Stay of Execution — Notice of Appeal as Sufficient Basis
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 — Property Capable of Permanent Alienation
Where the subject matter is property capable of permanent alienation and therefore capable of causing the appeal preferred to be rendered nugatory, the court will exercise its discretion in favour of the applicant so as to give benefit to the appeal to be attended to on its merits.
Civil Procedure — Stay of Execution — Substantial Loss — Meaning
The phrase substantial loss does not represent any particular amount or size and cannot be qualified by any particular mathematical formula. It refers to any loss great or small of real worth or value as distinguished from a loss that is merely nominal.
Civil Procedure — Stay of Execution — Unreasonable Delay
It is only fair that an intended appellant who has filed a notice of appeal should be able to apply for a stay of execution as soon as possible and not have to wait until he has lodged his appeal to do so. Owing to the long delay in obtaining the proceedings of the High Court it may be many months before he could lodge his appeal, and in the meantime execution of the decision of the court below could cause him irreparable loss.
Civil Procedure — Stay of Execution — Security for Due Performance — Balancing Rights
The applicant's right to be heard on appeal has to be balanced with the respondent's right to costs and the right to enjoy the fruits of one's judgment without being unnecessarily frustrated. Court must strive to maintain a balance between the need to have a successful party enjoy the fruit of his victory and at the same time to ensure that the unsuccessful party who has appealed would not be incapacitated as not to pursue his legitimate constitutionally guaranteed right to appeal against the judgment.

Legislation cited (4)

Cases cited (7)

  • Singh v Runda Coffee Estates Ltd [1966] EA
  • Kgazze v Businge (Supreme Court Civil Application No. 18 of 1990)
  • Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 03 of 2014)
  • Attorney General v East African Law Society and Another (EACA Application No. 7 of 2013)
  • Tropical Commodities Supplies Ltd and 2 Others v International Credit Bank Ltd (In Liquidation) [2004] 2 EA 331
  • Sengendo v Busulwa and Another (Court of Appeal Civil Appeal No. 207 of 2014)
  • Singh v Runda Coffee Estates Ltd [1966] EA 263

Full judgment

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Balkudembe_v_Dr._Mayanja_(Miscellaneous_Application_No._205_of_2023)_[2023]_UGHCLD_102_(13_April_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.