Wakilii

Byabagambi v Nampa & Another (Miscellaneous Application 147 of 2024)

High Court · [2024] UGHC 981 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of judgment in civil suit pending appeal to the Court of Appeal
Decision
Stay of execution granted pending disposal of appeal, subject to deposit of UGX 30,000,000 security within 30 days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that stay of execution granted where applicant satisfied all statutory conditions under Order 43 Rule 4(3) CPR. Court found imminent threat of execution from self-executing decree ordering eviction within two months, appeal not frivolous with likelihood of success, and balance of hardship favoured stay to preserve applicant's 30-year occupation pending appeal. Security for due performance of UGX 30,000,000 ordered within 30 days. Application against 2nd respondent dismissed for defective service.

Outcome

Stay of execution granted pending disposal of appeal, subject to deposit of UGX 30,000,000 security within 30 days

Facts

Applicant (1st defendant in civil suit no. 006 of 2024) lost a land dispute to respondents. Judgment ordered applicant to vacate 380 acres within two months or be evicted and surrender certificate of title. Applicant had occupied land for 30 years. 1st respondent and co-tenants were declared owners. Applicant awarded general damages of UGX 20,000,000. Main suit lasted 9 years in court. After judgment on 26 April 2024, applicant lodged notice of appeal and filed this application on 31 May 2024 seeking stay of execution pending Court of Appeal determination. 1st respondent alleged to be taking steps toward possession including approaching Land Board and conducting boundary surveys.

Issues

  1. Whether the applicant has lodged a notice of appeal.
  2. Whether the applicant will suffer substantial loss if the stay is not granted.
  3. Whether the application has been made without unreasonable delay.
  4. Whether the applicant has given security for due performance of the decree.

Orders

  • The application against the 2nd respondent is dismissed with no order as to costs.
  • The execution of the decree in civil suit no. 006 of 2024 is hereby stayed pending the disposal of the appeal arising therefrom.
  • The applicant deposits security for due performance of shillings thirty million (UGX 30,000,000) within 30 days from today.
  • Costs will abide the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant — Order 43 Rule 4(3) CPR
An applicant for stay of execution pending appeal must satisfy four cumulative conditions: (1) notice of appeal lodged; (2) substantial loss would result unless stay granted; (3) application made without unreasonable delay; and (4) security given for due performance of the decree.
Civil Procedure — Stay of Execution — Self-Executing Decrees — Imminent Threat
A decree ordering eviction within a specified timeframe constitutes a self-executing decree creating imminent threat of execution, justifying stay of execution even without formal execution proceedings. The threat need not be formal but must place the applicant's interest in direct, immediate, and impending peril.
Civil Procedure — Stay of Execution — Likelihood of Success — Frivolous Appeals
An appeal is not frivolous where the intended grounds raise arguable questions of law or fact evaluation, including challenges to the trial judge's reliance on photocopies tendered for identification and questions of standing. The appeal need not be certain to succeed but must show it is not hopeless.
Civil Procedure — Stay of Execution — Balance of Hardship — Irreparable Loss
In balancing hardship, courts must weigh the risk of rendering the appeal nugatory against depriving the successful party of the fruits of judgment. Where eviction would render the applicant homeless after 30 years' occupation and the loss cannot be atoned by damages, the balance favours stay to preserve the appeal.
Civil Procedure — Security for Costs — Security for Due Performance — Quantum
Security for due performance of the decree is interpreted to mean security for costs, not the entire decretal sum. Courts must make independent assessment of the parties and circumstances, and should not use security requirements as punishment or mechanism to frustrate the appeal. Security must be reasonable and within the applicant's capacity to pay.
Civil Procedure — Service of Process — Change of Counsel — Effective Service
Service on counsel who represented a party in a concluded matter is not effective service in a subsequent application. Instructions to represent a client are never implied but must be actual. Where former counsel indicates they no longer act for the party, service must be effected personally on the party.

Legislation cited (6)

Cases cited (14)

  • Ujagar Singh v Runda Coffee Estates Ltd [1966] EA 263
  • Hon Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 03 of 2014)
  • Kyambogo University v Professor Isaiah Omolo Ndiege (Civil Appeal No. 341 of 2013)
  • Formular Feeds Limited and 3 Others v KCB Bank Limited (Miscellaneous Application No. 1647 of 2022)
  • Baguma Paul t/a Panache Associates v Eng. Karuma Kagyina (Miscellaneous Application No. 460 of 2020)
  • Irene Rukundo v Rogers Kalyegira Eurogus (Miscellaneous Application No. 1447 of 2023)
  • Alice Wambui V John Negure Kahoro and Anor ELC Case no. 482 of 2017
  • Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 448
  • Aupal Kokas Winfred v Aisu Popuras (Miscellaneous Application No. 052 of 2022)
  • Kisaalu Joseph and 10 Others v Nakiito Mayi and Another (Miscellaneous Application No. 105 of 2020)
  • Tropical Commodities Supplies Ltd and Others v International Credit Bank Ltd (in liquidation) [2004] 2 EA 331
  • DFCU Bank Ltd v Dr. Ann Persis Nakate Lussejere (Civil Appeal No. 29 of 2003)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Wandera Micheal v Baguma Samalie (Miscellaneous Application No. 036 of 2021)

Full judgment

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Byabagambi v Nampa & Another (Miscellaneous Application 147 of 2024) [2024] UGHC 981 (18 October 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.