Wakilii

Bukenya v Nakamya & 3 Others (Miscellaneous Application 68 of 2024)

High Court · [2024] UGHC 914 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of High Court judgment and decree pending appeal to Court of Appeal
Decision
Application for stay of execution dismissed with costs to respondents

Observed later treatment

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Holding

Application for stay of execution dismissed. Although the applicant filed a notice of appeal, he failed to prove substantial loss where respondents had already taken possession pursuant to the decree, filed the application over a year after judgment without explanation, and adduced no evidence of imminent execution proceedings. Granting the stay would inflict greater hardship on the respondents already in possession than it would prevent. A party who has obtained a lawful decree should not be deprived of its fruits except for good and cogent reasons.

Outcome

Application for stay of execution dismissed with costs to respondents

Facts

The applicant sought stay of execution of a judgment and decree in Civil Appeal No. 9 of 2017 dated 2 November 2022 pending his appeal to the Court of Appeal. The original judgment ordered the applicant to deliver vacant possession of the suit plot to the respondents within sixty days. The applicant filed a notice of appeal on 30 June 2023. The application for stay was filed on 22 November 2023, over a year after the judgment. The respondents contended they were already in total control of the suit property and developments thereon. The applicant claimed the respondents intended to evict tenants, demolish a commercial house on the plot, and commit him to civil prison for taxed costs, though no evidence of formal execution proceedings was adduced. A preliminary objection was raised regarding service being effected two months after issue without leave to extend time, but counsel for respondents abandoned this objection during hearing.

Issues

  1. Whether the application for stay of execution was competent before the court given the delay in service.
  2. Whether the applicant lodged a notice of appeal.
  3. Whether the applicant will suffer substantial loss if stay of execution is not granted.
  4. Whether the application was made without unreasonable delay.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant — Four Statutory Conditions Must Be Met
An applicant seeking stay of execution must satisfy four conditions under Order 43 Rule 4(3) of the Civil Procedure Rules: (a) that the applicant lodged a notice of appeal; (b) that substantial loss may result unless stay is granted; (c) that the application was made without unreasonable delay; and (d) that the applicant has given security for due performance of the decree.
Civil Procedure — Stay of Execution — Substantial Loss — Requirement of Imminent Threat and Evidence of Execution Proceedings
To establish substantial loss, an applicant must prove a serious or imminent threat of execution such that if the stay is not granted the appeal would be rendered nugatory. Where an applicant claims the respondent intends to commit him to civil prison but adduces no evidence of a formal application for execution or notice to show cause, the court will not be convinced of an imminent threat.
Civil Procedure — Stay of Execution — Respondents Already in Possession — Balancing Hardship
Where respondents have already taken possession of the suit property pursuant to the decree, granting a stay of execution would inflict more hardship than it would avoid by effectively evicting the respondents who are lawfully in possession. The court has a duty to balance ensuring an appeal is not rendered nugatory while ensuring a successful party is not deprived of the fruits of judgment.
Civil Procedure — Stay of Execution — Unreasonable Delay — Application Filed Over One Year After Judgment Without Explanation
Delay must be assessed according to the circumstances of each case, with time reckoned from when the decree becomes enforceable. Where judgment was delivered on 2 November 2022 ordering the applicant to hand over property within two months, and the stay application was filed on 22 November 2023 (over a year later) without explanation, such delay is unreasonable and the applicant sat on his rights.
Civil Procedure — Preliminary Objections — Estoppel — Abandonment of Objection During Hearing
Where counsel for the respondents prayed for dismissal on grounds of non-service under Order 5 Rule 1(2) of the Civil Procedure Rules during hearing, but subsequently abandoned that prayer and agreed to proceed on the merits, counsel is estopped from raising the same objection in written submissions.

Legislation cited (5)

Cases cited (8)

  • Ujagarsingh v Runda Coffee Estates Ltd [1966] EA 263
  • Hon Theodore Ssekikubo & Others v Attorney General & Others (Constitutional Application No. 03 of 2014)
  • Aupal Kokas Winfred v Aisu Popuras (HCM No. 052 of 2022)
  • Kyambogo University v Professor Isaiah Omolo Ndiege (Court of Appeal No. 341 of 2013)
  • Hwang Sung Industries Ltd v Tajdin Hussein & Others (Supreme Court Civil Application No. 19 of 2008)
  • Baguma Paul t/a Panache Associates v Eng. Karuma Kagyina (Miscellaneous Application No. 460 of 2020)
  • Orient Bank Ltd v Zaabwe & Others (Miscellaneous Application No. 19 of 2007)
  • Junaco (T) Ltd & Others v DFCU Bank Limited (HCMA No. 0027 of 2023)

Full judgment

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

Bukenya v Nakamya & 3 Others (Miscellaneous Application 68 of 2024) [2024] UGHC 914 (3 September 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.