Wakilii

Blue Wave Beverages Limited & 2 Others v Kiiza & Another (Civil Application 1308 of 2023)

Court of Appeal · [2024] UGCA 202 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application before a single Justice of the Court of Appeal for stay of execution pending appeal from a High Court possession/compliance order
Decision
Application for stay of execution dismissed; interim status quo order set aside; costs to the respondents

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

A single Justice of the Court of Appeal dismissed an application to stay execution of a High Court possession order pending appeal. The court held it had jurisdiction under section 12 of the Judicature Act, and that the Civil Procedure Rules do not govern affidavits in the Court of Appeal. On the merits, although the applicants had filed a substantive appeal, they failed to show a likelihood of success because they admitted indebtedness and showed no bona fide arbitral dispute, would suffer no irreparable damage since the foreclosure sale was not the subject of the appeal, and the balance of convenience tilted against them absent any offer of the 30% mortgage deposit.

Outcome

Application for stay of execution dismissed; interim status quo order set aside; costs to the respondents

Facts

Under a facility agreement dated 10 March 2020, the second respondent advanced USD 3,500,000 to the first applicant, secured by a debenture and mortgage over properties at Plots 3 and 5 Fourth Link Road, Luzira. The first applicant defaulted, leaving USD 4,426,074 outstanding as at 22 December 2022. The first respondent was appointed Receiver in August 2023 and sought to take possession of the first applicant's plant and machinery but met resistance. The respondents filed High Court Miscellaneous Cause No. 95 of 2023 under the Insolvency Act seeking a compliance order to take over the secured movable property. Separately, as mortgagee, the first respondent commenced foreclosure proceedings, issuing a notice of sale and advertising the property for sale in November 2023. In December 2023 the High Court resolved the cause in the respondents' favour, ordering the applicants to deliver possession of the charged property and plant. The applicants appealed (Civil Appeal No. 1580 of 2023) and applied for a stay of execution pending the appeal. The applicants admitted having paid only about USD 300,000 of the claimed sum.

Issues

  1. Whether the respondent's Affidavit in Reply should be struck out as defective for being deposed on behalf of another party without written authorization.
  2. Whether a single Justice of the Court of Appeal has jurisdiction to hear an application for stay of execution.
  3. Whether the applicants satisfied the conditions for the grant of a stay of execution pending the disposal of their appeal.

Orders

  • The application for stay of execution of the Ruling and orders in High Court Civil Miscellaneous Cause No. 95 of 2023 is dismissed.
  • The interim order previously issued to maintain the status quo pending determination of this application is discontinued and set aside forthwith.
  • The costs of the application are granted to the respondents.

Rules and key headnotes

Civil Procedure — Affidavits — Applicability of the Civil Procedure Rules to the Court of Appeal
The Civil Procedure Act and the Rules made under it apply only to the High Court and Magistrates Courts; affidavits filed in the Court of Appeal are governed by Part II of the Judicature (Court of Appeal) Rules.
Civil Procedure — Affidavits — Severance of defective portions
Not every defect in an affidavit warrants striking out the entire affidavit; an offending portion may be severed while the remaining parts within the deponent's personal knowledge are preserved and remain admissible.
Civil Procedure — Submissions in rejoinder — Introduction of new matters
Submissions in rejoinder must be restricted to matters raised in the submissions in reply and may not introduce new matters without leave of court, as doing so denies the opposing party an opportunity to respond and breaches the principles of natural justice.
Civil Procedure — Jurisdiction — Single Justice of the Court of Appeal
Section 12 of the Judicature Act, being primary legislation, overrides Rule 53 of the Court of Appeal Rules and confers on a single Justice jurisdiction to hear and determine interlocutory applications, including applications for stay of execution.
Civil Procedure — Stay of execution — Preconditions for grant
An applicant for a stay of execution pending appeal must show a lodged notice of appeal, a likelihood of success or a prima facie right to appeal, irreparable damage or that the appeal will be rendered nugatory, that the balance of convenience favours a stay, and that the application was brought without delay.
Land & Property — Mortgage — Stay of execution — Deposit of 30% of forced sale value
An appellant seeking to stay execution affecting mortgaged property who makes no bona fide commitment to deposit 30% of the forced sale value or decretal sum under Regulation 13 of the Mortgage Regulations attracts less favourable consideration than one who has indicated an effort to address the successful party's minimum concerns.
Banking & Finance — Loan recovery — Arbitration clause — Admitted indebtedness
Where a borrower admits indebtedness under a loan facility and has taken no steps to commence arbitration as prescribed by the arbitration clause, no bona fide arbitrable dispute can be inferred so as to displace the lender's recovery rights.

Legislation cited (13)

Cases cited (8)

  • Luggya Andrew v Kikonyogo Richard & Anor (Civil Application No. 248 of 2021)
  • Jomayi Property Consultants Ltd v Andrew Maviiri (Civil Reference No. 174 of 2015)
  • Gashumba Maniraguha v Sam Nkundiye (Supreme Court Civil Application No. 24 of 2015)
  • Ssekikubo & 3 Ors v Attorney General & 4 Ors (Constitutional Appeal No. 6 of 2013)
  • Samuel Wuma v Uganda Railways Corporation (Civil Application No. 1193 of 2023)
  • Hwang Sung Industries Ltd v Tadjin Hussein & 2 Ors (Supreme Court Civil Appeal No. 19 of 2008)
  • Lubega v Attorney General & 2 Ors (Supreme Court Civil Appeal No. 13 of 2011)
  • Ganafa Peter Kisawuzi v DFCU Bank Ltd (Civil Application No. 64 of 2016)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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Blue Wave Beverages Limited & 2 Others v Kiiza & Another (Civil Application 1308 of 2023) [2024] UGCA 202 (30 July 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.