Wakilii

Batambuze v Ataro (Miscellaneous Application 162 of 2023)

High Court · [2024] UGHC 252 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal arising from Civil Suit No. 083 of 2010
Decision
Application dismissed with costs to the respondent

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 applicant failed to satisfy the mandatory conditions under Order 43 rule 4(3) of the Civil Procedure Rules. Execution had already been partially completed with the respondent reinstated on the certificate of title and in physical possession. The applicant demonstrated no legal interest in the suit property and provided no security for costs. The application was found to be an abuse of court process, being the second similar application filed after the applicant had withdrawn an earlier one without reason.

Outcome

Application dismissed with costs to the respondent

Facts

The applicant sought to stay execution of a judgment delivered on 11 October 2022 in Civil Suit No. 083 of 2010 pending appeal. The respondent had obtained judgment for recovery of land and damages worth UGX 246,000,000. The applicant filed a notice of appeal on 22 October 2022. He had previously filed a similar application (Misc. Application No. 33 of 2023) on 22 February 2023 which he withdrew on 22 March 2023 without giving reasons. The current application was filed on 10 July 2023. By the time of hearing, the respondent had already been reinstated on the certificate of title on 6 June 2023 under Instrument Number JJA-0034278 and had taken physical possession of the suit land. The applicant averred that the property subject to execution was no longer in his name and the registered proprietor was not party to the suit. The respondent contended that after judgment, the applicant fraudulently transferred the suit property to Mayfair Safari Hotel and then to one Kawanguzi Peter Frantile on 14 November 2022.

Issues

  1. Whether the applicant has lodged a notice of appeal.
  2. Whether the applicant will suffer substantial loss if execution is not stayed.
  3. Whether the application has been brought without unreasonable delay.
  4. Whether the applicant has given security for due performance of the decree or order.

Orders

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

Rules and key headnotes

Stay of Execution — Conditions for Grant — Mandatory Requirements
For an application for stay of execution pending appeal to succeed, the applicant must satisfy all four cumulative conditions under Order 43 rule 4(3) of the Civil Procedure Rules: (i) that a notice of appeal has been lodged; (ii) that substantial loss may result to the applicant unless the stay is granted; (iii) that the application has been made without unreasonable delay; and (iv) that security has been given for due performance of the decree.
Stay of Execution — Substantial Loss — Need for Specific Evidence
The phrase 'substantial loss' does not represent any particular amount but refers to any loss of real worth or value as distinguished from a loss that is merely nominal. It is not enough to merely repeat the words of the law; the kind of loss must be specified and the court's conscience must be satisfied that such loss will really ensue. The ordinary loss to which every judgment debtor is necessarily subjected when he loses his case and is deprived of his property does not constitute substantial loss — there must be something in addition to and different from that.
Stay of Execution — Abuse of Process — Filing Multiple Similar Applications
Where an applicant files and withdraws an application for stay of execution without giving reasons, and subsequently files a second similar application seeking identical orders, such conduct constitutes an abuse of court process. Courts will not reopen matters that have been concluded absent valid reasons for doing so.
Stay of Execution — Partial Execution Already Effected — Effect on Application
Where execution has already been partially effected such that the decree holder has been reinstated on the certificate of title and has taken physical possession of the suit property, there is no eminent danger of execution to justify granting a stay. An application for stay of execution is designed to preserve the status quo and prevent the appeal from being rendered nugatory, not to reverse execution already completed.
Stay of Execution — Security for Costs — Mandatory Requirement
The provision of security for due performance of the decree is a mandatory requirement before any order for stay of execution can be granted. The rationale is to maintain the status quo, to ensure the application is not merely intended to defeat justice through delaying tactics, and to demonstrate the seriousness of the judgment debtor in seeking the stay. A court may only dispense with this requirement if the justice of the case warrants.
Stay of Execution — Clean Hands Doctrine — Fraudulent Transfer of Property
An applicant who disobeys a court order or its judgment cannot at the same time come before the same court to seek a remedy. Where an applicant, after judgment is delivered against him, fraudulently transfers the suit property to third parties in an attempt to defeat execution, he does not come to court with clean hands and his application for stay of execution will be dismissed.
Stay of Execution — Locus Standi — Transfer of Interest After Judgment
Where an applicant avers that the property subject to execution is not his and that he is no longer in possession or the registered proprietor, and that the current registered proprietor was not party to the suit, the applicant demonstrates that he has no legal title or legal interest in the property. Such an applicant has no locus standi to seek a stay of execution as he cannot show how he will be prejudiced if the stay is not granted.

Legislation cited (11)

Cases cited (22)

  • Makerere University v St. Mark Education Institute & Ors (High Court Civil Suit No. 378 of 1993)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Application No. 18 of 1990)
  • Theodore Ssekikubo and Ors v Attorney General and Ors (Constitutional Application No. 03 of 2014)
  • Kampala Bottlers v Uganda Bottlers (Supreme Court Civil Application No. 25 of 1995)
  • Hansa Industries Ltd v Tadjir Hussein & 2 Ors (Supreme Court Appeal No. 19 of 2018)
  • Nalwanga v Eden Ltd & Ors (Miscellaneous Application No. 7 of 2017)
  • Mugene v Akankwasa [2008] HCB 160
  • Membe v Mayoga [2009] HCB 82
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal No. 341 of 2013)
  • Tropical Commodities Supplies Ltd and 2 Ors v International Credit Bank Limited (in Liquidation) [2004] 2 EA 331
  • Hwang Sung Industries Ltd v Tadjaudin Hussein & Ors (Supreme Court Civil Appeal No. 79 of 2008)
  • Steel Rolling Mills Ltd & Anor vs Gestation Economique Des Mission Catholic & Anor
  • Pan African Insurance Company (U) Ltd v International Air Transport (High Court Miscellaneous Application No. 86 of 2006)
  • Bashidar v Pribku Dyal AIR 41 1954
  • Scott v Brown Doering, McNab and Co. (1892) 2 QB 724
  • Mugume Ben and Anor v Akankwasa David ULR 683
  • Tropical Commodities Supplies Ltd & Ors v International Credit Bank Ltd (in liquidation) (Civil Appeal No. 24 of 2004)
  • New Vision Publishing Corporation & 2 Ors v Peter Kagawa (High Court Miscellaneous Application No. 127 of 2006)
  • Ntege Mayambala v Christopher Mwanje (1993) KALR 97
  • International Credit Bank (In Liquidation) v Tropical Commodities Ltd & 2 Ors (Civil Appeal No. 24 of 2004)
  • JWR Kazoora v MLS Rukuba (Supreme Court Civil Appeal No. 4 of 1991)
  • East African Development Bank v Blue Nile Enterprises Ltd [2006] EA 51

Full judgment

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

Batambuze v Ataro (Miscellaneous Application 162 of 2023) [2024] UGHC 252 (13 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.