Wakilii

Busingye Provia and Others v Shedrack Yaboneka (Civil Miscellaneous Application No. 598 of 2025)

Court of Appeal · [2026] UGCA 6 · 2026 Application Granted 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 a stay of execution pending the determination of a second civil appeal
Decision
Stay of execution granted pending determination of Civil Appeal No. 1526 of 2023

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The applicants sought a stay of execution before a single Justice of the Court of Appeal pending a second appeal, having first failed in the High Court. Applying the settled principles for a stay under Rule 6(2)(b) of the Court of Appeal Rules, the court held the applicants had lodged a notice of appeal, shown an arguable appeal with a prima facie likelihood of success, demonstrated that threatened execution (including arrest and committal to civil prison) would cause irreparable damage and render the appeal nugatory, established that the balance of convenience favoured them, and acted without delay. The application was allowed and execution stayed pending the appeal, with costs to abide the appeal.

Outcome

Stay of execution granted pending determination of Civil Appeal No. 1526 of 2023

Facts

The applicants and the respondent are engaged in a long-running land dispute originating from a 2006 trespass suit before the Mbarara District Land Tribunal, later transferred to the Magistrate's Court, which decided in the applicants' favour. The respondent successfully appealed to the High Court in Civil Appeal No. 033 of 2022, and the applicants then filed a second appeal, Civil Appeal No. 1526 of 2023, in the Court of Appeal. The applicants' earlier application for a stay of execution in the High Court (Miscellaneous Application No. 491 of 2023) was dismissed for lack of merit. The respondent, as decree holder, commenced execution to recover taxed costs through High Court Execution Applications Nos. 82 and 87 of 2025 and served a notice to show cause why execution should not issue, threatening the applicants with arrest and committal to civil prison. The applicants, all of advanced age, applied to the Court of Appeal for a stay of execution pending the second appeal.

Issues

  1. Whether there are sufficient grounds to grant a stay of execution of the decree in Civil Appeal No. 033 of 2022 and the order in Miscellaneous Application No. 491 of 2023 pending the outcome of Civil Appeal No. 1526 of 2023.

Orders

  • The application is allowed.
  • The execution of the judgment and decree or orders in Civil Appeal No. 033 of 2022 and Miscellaneous Application No. 491 of 2023 is stayed pending the determination of Civil Appeal No. 1526 of 2023.
  • Costs of this application shall abide the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution — Discretionary nature of the jurisdiction under Rule 6(2)(b)
A stay of execution is a discretionary order; under Rule 6(2)(b) of the Judicature (Court of Appeal Rules) Directions the court may, where a notice of appeal has been lodged, order a stay of execution on such terms as it thinks just to preserve the subject matter and prevent the appeal from being rendered nugatory.
Civil Procedure — Stay of Execution — Conditions to be satisfied by an applicant
An applicant for a stay of execution must establish that a notice of appeal was lodged, that the appeal has a likelihood of success or a prima facie right of appeal, that irreparable damage will be suffered or the appeal rendered nugatory if a stay is refused, that the balance of convenience favours a stay, and that the application was instituted without delay.
Civil Procedure — Stay of Execution — Likelihood of success — standard required
At the stay stage an applicant need not demonstrate that the appeal will succeed, only that it is arguable and not frivolous or vexatious, the memorandum of appeal raising real questions of fact or law; the court must not make definitive findings on the merits lest it embarrass the hearing of the main appeal.
Civil Procedure — Stay of Execution — Requirement to apply first in the High Court (Rule 42)
Under Rule 42 of the Court of Appeal Rules an application for a stay of execution must first be made in the High Court where the decree was passed, and only upon rejection there may a fresh application be filed in the Court of Appeal.
Civil Procedure — Stay of Execution — Irreparable damage — threat of arrest and committal to civil prison
Where threatened execution would lead to the arrest and committal of judgment debtors to civil prison, thereby impeding their ability to prosecute a pending appeal, this constitutes irreparable damage that may render the appeal nugatory and justifies a stay of execution.

Legislation cited (8)

Cases cited (9)

  • Lubega Moses v Nassimbwa Sylivia (Civil Application No. 0122 of 2024)
  • Gashumba Mamiraguha v Sam Nkundiye (Civil Application No. 0024 of 2015)
  • Hon. Sekikubo and 3 Others v Attorney General (Constitutional Application No. 0006 of 2013)
  • Gladys Mukula v Rosemary Nabukenya (Civil Application No. 211 of 2020)
  • Junaco (T) Limited and 2 Others v DFCU Bank Ltd (Civil Application No. 145 of 2023)
  • Stanley Kang'ethe Kinyanjui v Tonny Ketter and 5 Others [2013] eKLR
  • Krone Uganda Limited v Kerilee Investment Limited (Civil Application No. 63 of 2020)
  • Lawrence Kyazze Musiitwa v Eunice Busingye (Civil Appeal No. 13 of 1990)
  • National Enterprise Corporation v Mukisa Foods (Miscellaneous Civil Application No. 7 of 1998)

Full judgment

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

Busingye Provia and Others v Shedrack Yaboneka (Civil Miscellaneous Application No. 598 of 2025) [2026] UGCA 6 (30 January 2026)
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.