Wakilii

Bisuti v Kiyuba (HCT-03-MA 103 of 2023)

High Court · [2023] UGHC 175 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal from judgment in Civil Suit No. 033 of 2017
Decision
Application dismissed for failure to satisfy mandatory conditions for stay of execution

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 court held that the applicant failed to satisfy the mandatory conditions under Order 43 rule 4(3) of the Civil Procedure Rules. Critically, the notice of appeal was filed in the wrong court (High Court instead of Court of Appeal), filed outside the prescribed 14-day period under Court of Appeal Rules r.76(1), and no application for extension of time had been filed. Without proof of a properly lodged appeal in the Court of Appeal, the court could not grant a stay. The applicant also failed to furnish or intimate willingness to provide security for due performance of the decree.

Outcome

Application dismissed for failure to satisfy mandatory conditions for stay of execution

Facts

The applicant, Bisuti Sarah, was the administratrix of the estate of the late Kato William Kaziba, who died on 2 February 2022. She obtained letters of administration on 5 July 2022. On 15 March 2022, the Deputy Registrar delivered judgment in Civil Suit No. 33 of 2017 in favour of the respondent, Kiyuba Fred, ordering vacant possession of suit land and attachment of properties. On 18 July 2022, the applicant filed a notice of appeal in the High Court. The respondent subsequently instituted execution proceedings (EMA No. 008 of 2023) and served a notice to show cause on the deceased's widow. The applicant applied for stay of execution on 16 May 2023, arguing that execution would render her intended appeal nugatory and cause irreparable loss to the deceased's family residing on the suit land.

Issues

  1. Whether there is an arguable appeal which would be rendered nugatory if the application for stay is not granted?
  2. Whether substantial loss may result to the party applying for stay of execution?
  3. Whether the application has been made without undue delay?
  4. Whether there is serious or imminent threat of execution of the decree or order if the application is not granted?
  5. Whether the application is not frivolous and has a likelihood of success?
  6. Whether security has been given by the applicant for due performance of the decree or order as may ultimately be binding upon her?

Orders

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

Rules and key headnotes

Civil Procedure — Stay of Execution — Pending Appeal — Notice of Appeal Filed in Wrong Court
Where a notice of appeal is filed in the High Court instead of the Court of Appeal, and filed outside the prescribed 14-day period without an application for extension of time, there is no valid pending appeal to support an application for stay of execution under Order 43 rule 4 of the Civil Procedure Rules.
Civil Procedure — Stay of Execution — Mandatory Conditions — Order 43 Rule 4(3) CPR
The conditions under Order 43 rule 4(3) of the Civil Procedure Rules for granting stay of execution are mandatory and cumulative. All conditions must be satisfied: substantial loss may result to the applicant; the application has been made without unreasonable delay; and security has been given for due performance of the decree. The absence of one or more conditions renders the application incompetent.
Civil Procedure — Stay of Execution — Security for Due Performance — Mandatory Requirement
Provision of security for due performance of the decree is mandatory before any order for stay of execution can be granted. Where an applicant neither furnishes security nor intimates by affidavit evidence an intention to do so, the application must fail. The court may only dispense with security if the justice of the case warrants, which must be demonstrated by the applicant.

Legislation cited (5)

Cases cited (21)

  • Kyazze v Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Hansa Industries Ltd v Hussein (Supreme Court Civil Appeal No. 19 of 2018)
  • Nalwanga v Eden Ltd (Miscellaneous Application No. 7 of 2017)
  • Mugene v Akankwasa [2008] HCB 160
  • Membe v Mayoga [2009] HCB 82
  • Kazoora v Rukuba (Supreme Court Civil Appeal No. 4 of 1991)
  • East African Development Bank v Blue Nile Enterprises Ltd [2006] EA 51
  • Attorney General v East African Law Society (East African Court of Justice Application No. 1 of 2013)
  • Stanbic Bank Uganda v Atyaba Agencies (Supreme Court Civil Appeal No. 31 of 2004)
  • Tropical Commodities Supplies Ltd v International Credit Bank Ltd [2004] 2 EA 331
  • Steel Rolling Mills Ltd & Anor v 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
  • Sewankambo v Ziwa (High Court Miscellaneous Application No. 178 of 2005)
  • Ujagar Singh vs Runda Coffee Estates Ltd
  • Tropical Commodities Supplies Ltd v International Credit Bank Ltd (Civil Appeal No. 24 of 2004)
  • New Vision Publishing Corporation v Kagawa (High Court Miscellaneous Application No. 127 of 2006)
  • Mayambala v Mwanje (1993) KALR 97
  • International Credit Bank v Tropical Commodities Ltd (Civil Appeal No. 24 of 2004)
  • Amuanaun v Opolot (Miscellaneous Application No. 3 of 2014)
  • Musiitwa v Busingye (Supreme Court Civil Appeal No. 18 of 1990)

Full judgment

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Bisuti v Kiyuba (HCT-03-MA 103 of 2023) [2023] UGHC 175 (24 October 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.