Butele Alfred v Richard Niyibona (Miscellaneous Application No. 3 of 2024)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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.

Holding

Held that an appeal from an order under Order 36 of the Civil Procedure Rules is not as of right and requires leave of court under Order 46 rule 1(2) and (3). Where an applicant files an appeal without first obtaining leave, the appeal is incompetent. An application for stay of execution pending an incompetent appeal cannot succeed on the ground of likelihood of success. Application dismissed with costs.

Outcome

Application for stay of execution dismissed; applicant must seek leave to appeal before the appeal can proceed

Facts

The applicant was defendant in a summary suit (HCCS No. 0001 of 2023) in which judgment in default was entered against him for USD 30,000 after his application for leave to appear and defend was denied. The applicant's application for unconditional leave to appear and defend (Miscellaneous Application No. 0007 of 2023) was dismissed by Justice Collins Acellam on 15 December 2023. The applicant filed Civil Appeal No. 0606 of 2024 against that dismissal without seeking leave of court. The respondent, as judgment creditor, filed a bill of costs and initiated execution. The applicant then brought this application for stay of execution pending appeal, arguing that he would suffer substantial loss if his property at Abirichi Village was sold in execution and that his appeal had a high likelihood of success.

Issues

1. Whether the application for a temporary injunction should be granted.
2. Whether Civil Appeal No. 0606 of 2024 was competent without leave of court.

Orders

• Application dismissed.
• Costs awarded to the respondent.

Rules and key headnotes

Legislation cited (15)

• Civil Procedure Act Cap. 282 s.64(e)
• Civil Procedure Act Cap. 282 s.76(1)
• Civil Procedure Act Cap. 282 s.76(2)
• Civil Procedure Act Cap. 282 s.98
• Civil Procedure Rules S.I. 71-1 Order 22 rule 26
• Civil Procedure Rules S.I. 71-1 Order 36 rule 3(1)
• Civil Procedure Rules S.I. 71-1 Order 36 rule 3(4)
• Civil Procedure Rules S.I. 71-1 Order 43 rule 4
• Civil Procedure Rules S.I. 71-1 Order 44 rule 1(1)
• Civil Procedure Rules S.I. 71-1 Order 46 rule 1(2)
• Civil Procedure Rules S.I. 71-1 Order 46 rule 1(3)
• Civil Procedure Rules S.I. 71-1 Order 46 rule 1(4)
• Civil Procedure Rules S.I. 71-1 Order 52 rule 1
• Civil Procedure Rules S.I. 71-1 Order 52 rule 2
• Constitution of the Republic of Uganda 1995 Article 134(2)

Cases cited (2)

• Attorney General v Shah (No. 4) [1971] 1 EA 50
• Baku Raphael Obudra v Attorney General (Constitutional Appeal No. 1 of 2005)

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