Wakilii

Balwaine v Namusisi (Miscellaneous Application 933 of 2022)

High Court · [2023] UGHCFD 141 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of judgment pending appeal to the Court of Appeal
Decision
Application dismissed, execution may proceed, interim stay lifted

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. 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

Application for stay of execution dismissed. The applicant failed to demonstrate that substantial loss would result if execution proceeded, failed to show that the appeal had a likelihood of success, and did not offer security for due performance of the decree as required by Order 43 Rule 4(3) of the Civil Procedure Rules. The successful decree holder should not be prevented from enjoying the fruits of the judgment where the applicant fails to satisfy the mandatory conditions for stay of execution. Costs awarded to the respondent.

Outcome

Application dismissed, execution may proceed, interim stay lifted

Facts

The applicant sought to stay execution of a judgment delivered on 20 May 2022 in Originating Summons No. 006 of 2022, in which the respondent obtained orders relating to property. The applicant filed Civil Appeal No. 047 of 2022 challenging that judgment. On 5 October 2022, the applicant received notice that the respondent intended to execute the decree by evicting him from the suit property on 10 October 2022. The applicant filed this application on 6 October 2022, seeking a stay of execution pending appeal. He claimed he had been living on the property with his family for four years and would suffer irreparable loss if evicted. The respondent opposed the application, contending that the suit house was built by her and her late mother, that the applicant had no proprietary interest in it, and that she would be prejudiced if denied the fruits of her judgment.

Issues

  1. Whether the applicant is entitled to an order staying execution of the judgment in Originating Summons No. 006 of 2022 pending the determination of Civil Appeal No. 047 of 2022.
  2. Who bears the costs of this application.

Orders

  • The application for stay of execution of the judgment delivered in Originating Summons No. 006 of 2022 is hereby dismissed.
  • Costs for this application are awarded to the Respondent.
  • The interim order that was granted on 7th October, 2022 automatically lapses.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant — Mandatory Requirements under Order 43 Rule 4(3) CPR
An application for stay of execution is not automatic upon filing an appeal. The applicant must satisfy three mandatory conditions under Order 43 Rule 4(3) of the Civil Procedure Rules: (i) that substantial loss may result to the applicant unless the order is made; (ii) that the application has been made without unreasonable delay; and (iii) that security has been given by the applicant for due performance of the decree or order as may ultimately be binding upon him or her.
Civil Procedure — Stay of Execution — Substantial Loss — Must be Demonstrated with Specificity
To establish substantial loss for purposes of a stay of execution, it is not sufficient merely to repeat the words that substantial loss will result. The kind of loss must be specified, details must be given, and the conscience of the court must be satisfied that such loss will really ensue. The loss must be more than what would ordinarily result from execution of the decree in normal circumstances, and must be such that it cannot be compensated by the respondent upon a successful appeal.
Civil Procedure — Stay of Execution — Security for Due Performance — Mandatory Requirement
The requirement under Order 43 Rule 4(3) of the Civil Procedure Rules that the applicant furnish security for due performance of the decree is mandatory and not merely directory. Where the applicant makes no commitment in the application or supporting affidavit to furnish security for due performance or costs, the application must fail on that ground alone.
Civil Procedure — Stay of Execution — Rights of Successful Party — Entitlement to Fruits of Judgment
A successful decree holder should not without good reason be deprived of the fruits of a judgment in their favour. Where the applicant fails to satisfy the conditions for stay of execution, the court will not prevent the judgment creditor from enjoying the fruits of the judgment. Litigants should not be encouraged to file appeals and applications for stay of execution thinking that the grant of a stay is automatic.

Legislation cited (4)

Cases cited (9)

  • Hon. Theodore Ssekikubo & Others v The Attorney General and Another (Constitutional Application No. 06 of 2013)
  • Tropical Commodities Suppliers Ltd and Others v International Credit Bank Ltd (In Liquidation) (2004) 2 EA 331
  • Anandi Prashad Vs Govinda Bapu AIR 1934 Nag 160 (D)
  • Nganga v Kimani [1969] EA
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Kyambogo University v Prof Isaiah Omoro Ndiege (Civil Application No. 341 of 2013)
  • James Wangalwa & Another Versus Agnes Naliaka Cheseto [2012] eKLR
  • Amunaum Sam v Opolot David (Miscellaneous Application No. 3 of 2014)
  • Kampala Bottlers Ltd v Uganda Bottlers (Supreme Court Civil Appeal No. 25 of 1995)

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.

Balwaine v Namusisi (Miscellaneous Application 933 of 2022) [2023] UGHCFD 141 (21 July 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.