Wakilii

Bazira v Kagimu (Misc. Application No. 1138 of 2016)

High Court · [2018] UGHCLD 52 · 2018 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal from High Court judgment in underlying civil suit
Decision
Stay of execution granted conditionally upon provision of security for costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that stay of execution pending appeal is granted subject to the applicant providing security for costs amounting to half of the taxed costs granted in the main suit. A supplementary affidavit filed after the respondent's submissions without leave of court is irregular and struck off. A procedural defect in citing Order 22 rule 23 is curable under Article 126(2)(e) of the Constitution.

Outcome

Stay of execution granted conditionally upon provision of security for costs

Facts

The applicant was defendant in Civil Suit No. 396 of 2014 in which the respondent sued for breach of tenancy agreement, rent arrears, demolition of illegal bar structures, eviction, general damages, interest and costs. On 2nd September 2016, judgment was entered in favour of the respondent ordering the applicant to vacate the suit property and remove temporary structures within 30 days. The applicant filed a notice of appeal and this application for stay of execution on 13th September 2016, within 10 days of the judgment. An interim stay was initially granted. The applicant subsequently filed a supplementary affidavit on 19th March 2018 after the respondent had filed submissions on 15th November 2017. The respondent objected to the supplementary affidavit as filed out of time without leave of court. The respondent also objected that the application was brought under the wrong legal provision.

Issues

  1. Whether the supplementary affidavit filed by the applicant after the respondent's submissions should be struck off as irregular
  2. Whether the application was properly brought under Order 22 rule 23 of the Civil Procedure Rules
  3. Whether the application for stay of execution of the decree entered on 2nd September 2016 should be granted pending hearing of the appeal

Orders

  • The supplementary affidavit filed by the applicant on 20th March 2018 is struck off the record as irregular.
  • The preliminary objection based on procedural defect in citing Order 22 rule 23 is overruled.
  • The application for stay of execution is granted subject to the applicant providing security for costs amounting to half of the taxed costs granted in the main suit.
  • If the condition of providing security for costs is met, execution will be stayed pending the appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution — Supplementary Affidavits — Filing Without Leave After Closure of Pleadings
A supplementary affidavit filed after the opposing party has submitted to court, without first seeking leave of court, is irregular and liable to be struck off the record. Order 8 rule 18(2) of the Civil Procedure Rules requires parties to seek leave where pleadings are deemed closed, and this leave is discretionary.
Civil Procedure — Procedural Defects — Curable Defects — Article 126(2)(e) Constitution
Procedural defects, such as bringing an application under a wrong procedure or citing an inapplicable legal provision, can be cured by the invocation of Article 126(2)(e) of the Constitution where no real harm, prejudice or miscarriage of justice has been occasioned to the opposing party.
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 of execution in appropriate cases, even where the full appeal record has not yet been filed.
Civil Procedure — Stay of Execution — Grounds for Stay — Order 43 Rule 4
An appeal to the High Court does not per se operate as a stay of execution of proceedings. For a stay of execution to be granted under Order 43 rule 4 of the Civil Procedure Rules, the applicant must satisfy three grounds: (1) that substantial loss may result unless the order is made; (2) that the application has been made without unreasonable delay; and (3) that security has been given for the due performance of the decree as may ultimately be binding upon the applicant.
Civil Procedure — Stay of Execution — Security for Costs as Condition
Security for costs is not a condition precedent to the grant of stay of execution in all cases, but where the court finds it appropriate, it may grant stay of execution subject to the provision of security for costs. Due performance of the decree can be secured by the provision of security for costs.

Legislation cited (13)

Cases cited (6)

  • Alcon International v Kasirye Byaruhanga (1995) 111 KALR
  • Equity Bank Uganda Ltd v Nicholas Were (Misc. Application No. 604 of 2013)
  • Attorney General of the Republic of Uganda v The East African Law Society & Another (EACA Application No. 1 of 2013)
  • Kampala Capital City Authority v Mulangira Joseph (Misc. Application No. 26 of 2016)
  • Imperial Royale Hotel Ltd & 2 Others v Ochan Daniel (Misc. Application No. 111 of 2012)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Appeal No. 18 of 1990)

Full judgment

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

Bazira_v_Kagimu_(Misc._Application_No._1138_of_2016)_[2018]_UGHCLD_52_(1_June_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.