Wakilii

Birihariiwe v Bright Amooti (Miscellaneous Application 107 of 2023)

High Court · [2024] UGHC 389 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of taxation award pending determination of taxation appeal
Decision
Stay of execution granted without security for costs pending determination of taxation appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted stay of execution of a taxation award pending determination of a taxation appeal. Held that where an applicant demonstrates proof of lodgment of appeal, substantial loss if execution proceeds, imminent threat of execution, absence of unreasonable delay, courts should grant stay and may decline to order security for costs where the appeal is merely pending ruling and no prejudice results to the respondent.

Outcome

Stay of execution granted without security for costs pending determination of taxation appeal

Facts

The applicant was petitioner in an election petition which was dismissed with costs to the respondent. The respondent's bill of costs was taxed and allowed at UGX 73,010,000 by the Deputy Registrar on 27 June 2023. The applicant filed Civil Appeal No. 26 of 2023 challenging the taxation decision on 4 July 2023. The appeal was heard on 18 October 2023 and was pending ruling. On 17 November 2023, the applicant's lawyer was served with a notice to show cause why execution should not issue. The applicant was subsequently arrested but later released by the registrar on account of the pending appeal. The Deputy Registrar had issued a warrant of execution.

Issues

  1. Whether this is a proper application for grant of an order of stay of execution of the decree in Election Petition No. 10 of 2021 pending the determination of Civil Appeal No. 26 of 2023

Orders

  • An order doth issue staying the execution of the decree in Election Petition No. 10 of 2021 pending the determination of Taxation Appeal No. 26 of 2023.
  • The order for stay shall remain in force until the determination of Taxation Appeal No. 26 of 2023.
  • No order is made as to costs.

Rules and key headnotes

Stay of Execution — Requirements under Order 43 rule 4 CPR
An applicant seeking stay of execution must prove: (a) lodgment of an appeal in the appellate court; (b) substantial loss may result unless the order is made; (c) the application has been made without unreasonable delay; (d) security has been given for due performance of the decree; (e) there is a serious and imminent threat of execution; and (f) refusal to grant stay would inflict greater hardship than it would avoid.
Stay of Execution — Substantial Loss
Substantial loss need not be determined by a mathematical formula yielding any particular amount. It means damages which represent actual loss, whether great or small, as opposed to nominal damages. Where an applicant will be forced to pay a sum which he disputes pending appeal, substantial loss is established.
Stay of Execution — Security for Costs versus Security for Decretal Sum
Courts have been reluctant to order security for due performance of the entire decretal sum and have been keen to order security for costs instead, because the requirement and insistence on a practice that mandates security for the entire decretal amount is likely to stifle appeals. Due performance of the decree can be secured by provision of security for costs.
Stay of Execution — Discretion to Waive Security for Costs
The requirement to deposit security for costs should not be used as punishment to the applicant or as a mechanism to frustrate his appeal by ordering security which the applicant may not be able to pay. Court must make an independent assessment of the facts and parties before ordering security for costs. Where an appeal is merely pending ruling and no injustice or prejudice shall be suffered by the respondent, court may grant stay without ordering security for costs.

Legislation cited (8)

Cases cited (9)

  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Application No. 18 of 1990)
  • Dr. Ahmed Muhammed Kisule v Greenland Bank (in Liquidation) (Supreme Court Civil Application No. 7 of 2010)
  • Kyambogo University v Prof. Isiah Omolo Ndiege (Court of Appeal Civil Appeal No. 341 of 2013)
  • Tropical Commodities Suppliers Ltd & 2 Others v International Credit Bank Ltd (In Liquidation) (Miscellaneous Application No. 379 of 2003)
  • Shem Mpanga Mukasa & Anor v Kizza Clessy Barya (Miscellaneous Application No. 479 of 2021)
  • Kisaalu Joseph & 10 Others v Nakintu May & Anor (Miscellaneous Application No. 105 of 2020)
  • DFCU Bank Ltd v Dr. Ann Persis Nakate Lussejere (Court of Appeal Civil Appeal No. 29 of 2003)
  • Amon Bazira v Maurice Pater Kagimu (Land Division Miscellaneous Application No. 1138 of 2016)
  • The New Vision Publishing Corporation & 2 Others v Peter Kaggwa (High Court Miscellaneous Application No. 127 of 2006)

Full judgment

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

Birihariiwe v Bright Amooti (Miscellaneous Application 107 of 2023) [2024] UGHC 389 (8 April 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.