Wakilii

Banobere & Anor v Nyamisango (HCT – 01 – LD – MA – 0022 OF 2018)

High Court · [2018] UGHCCD 35 · 2018 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending intended appeal to Court of Appeal
Decision
Application dismissed with costs to respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for stay of execution dismissed. Applicants failed to satisfy Order 43 Rule 4(3) requirements: no substantial loss shown (land immovable), unreasonable delay (9 months since judgment, no memorandum filed within statutory 30 days), and no security given for performance of decree. An intended appeal does not automatically warrant stay.

Outcome

Application dismissed with costs to respondent

Facts

The applicants sought stay of execution of judgments in a long-running land dispute that originated in LC III Court in 2008. After retrial ordered on appeal, the Magistrate's Court decided in favour of the respondent in 2015. The applicants appealed to the High Court, which dismissed their appeal on 4 October 2017. Nine months later, the applicants filed this application for stay pending intended appeal to Court of Appeal, having filed a notice of appeal and requested typed record but not yet filed a memorandum of appeal. The respondent opposed, stating she had won three times, costs remained unpaid since 2015, and the applicants were employing delaying tactics.

Issues

  1. Whether the applicants satisfied the conditions under Order 43 Rule 4 of the Civil Procedure Rules for stay of execution pending appeal.

Orders

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

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions under Order 43 Rule 4
Under Order 43 Rule 4(3) of the Civil Procedure Rules, no order of stay of execution shall be made unless the court is satisfied that substantial loss may result to the applicant, the application is made without unreasonable delay, or security has been given for due performance of the decree.
Civil Procedure — Stay of Execution — Substantial Loss — Immovable Property
Where the subject matter of dispute is land, an applicant cannot demonstrate substantial loss merely by asserting that an appeal will be rendered nugatory, because land is immovable and will remain available to the successful party regardless of when the appeal is heard.
Civil Procedure — Stay of Execution — Unreasonable Delay — Time for Filing Appeal
Under Section 79 of the Civil Procedure Act, every appeal shall be filed within 30 days from the date of decree or order. An application for stay made 9 months after judgment without filing a memorandum of appeal constitutes unreasonable delay for purposes of Order 43 Rule 4(3)(b).

Legislation cited (8)

Full judgment

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Banobere & Anor Vs Nyamisango (HCT – 01 – LD – MA – 0022 OF 2018) [2018] UGHCCD 35 (11 July 2018)
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.