Wakilii

Byamukama v Kyampagi & 3 Others (Civil Application 139 of 2024)

Court of Appeal · [2024] UGCA 289 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by Notice of Motion for a stay of execution pending appeal, before a single Justice of Appeal
Decision
Application allowed; stay of execution granted pending the final determination of the appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On an application for a stay of execution pending appeal, the single Justice applied the established principles restated in Ssekikubo v Attorney General. The applicant had established a prima facie case with a likelihood of success, having lodged a memorandum of appeal raising arguable grounds, and had shown by affidavit that he was in long-standing possession of the suit land with substantial developments such that an eviction before the appeal was heard would cause irreparable damage that could not be atoned for in damages. As both conditions were satisfied, the court did not need to consider the balance of convenience. The application was allowed and a stay of execution granted.

Outcome

Application allowed; stay of execution granted pending the final determination of the appeal

Facts

On 26 August 2022 the High Court at Kampala delivered judgment in Civil Suit No. 244 of 2008 against the applicant, declaring among other things that he had purchased 40% of the shares in the first respondent company, but that registration as a shareholder was subject to the directors agreeing to enter him in the register under the Articles of Association. The applicant appealed (Civil Appeal No. 341 of 2022) and the respondents lodged a cross-appeal contesting the High Court's awards. The applicant alleged the respondents had commenced execution by commissioning a survey and boundary opening over the suit land with a view to evicting him. He had lived on and possessed the suit land since 1993 and had constructed two valley dams, a silo and a homestead, and his wife's burial grounds were located there. The respondents denied commencing execution or instructing any boundary opening and contended a similar application was pending in the High Court (Misc. Application No. 1831 of 2023).

Issues

  1. Whether the applicant adduced sufficient reasons to justify the grant of a stay of execution of the judgment and decree in Civil Suit No. 244 of 2008 pending appeal.

Orders

  • An order for stay of execution of the judgment and decree in Civil Suit No. 244 of 2008 is issued until the final determination of the appeal.
  • Costs shall abide the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution Pending Appeal — Governing Principles
A court's discretion to grant a stay of execution under Rule 6(2)(b) of the Judicature (Court of Appeal) Rules must be exercised on established principles: the applicant must show a prima facie case with a likelihood of success on appeal; that he will suffer irreparable damage, or that the appeal will be rendered nugatory, if a stay is refused; and, where those are not established, the court considers where the balance of convenience lies; and that the application was instituted without delay.
Civil Procedure — Stay of Execution — Likelihood of Success — Role of the Court
In assessing likelihood of success on a stay application, the court does not pre-empt the merits to be determined by the full bench but only determines whether the appeal is frivolous; where the applicant attaches a memorandum of appeal laying out arguable questions for determination, a prima facie case with a likelihood of success is established.
Civil Procedure — Stay of Execution — Irreparable Damage — Possession of Land
Where an applicant proves by affidavit that he is in long-standing possession of the suit land with substantial developments on it, an eviction prior to the hearing and determination of the appeal constitutes irreparable damage that cannot be atoned for in damages; once a prima facie case and irreparable damage are established, the court need not consider the balance of convenience.

Legislation cited (6)

  • Judicature (Court of Appeal Rules) r.2(2)
  • Judicature (Court of Appeal Rules) r.6(2)(b)
  • Judicature (Court of Appeal Rules) r.42
  • Judicature (Court of Appeal Rules) r.43(1)
  • Judicature (Court of Appeal Rules) r.44(1)
  • Judicature (Court of Appeal Rules) r.76

Cases cited (2)

  • Hon. Theodore Ssekikubo and Others v Attorney General and Another (Constitutional Application No. 6 of 2019)
  • American Cyanamid Co v Ethicon Ltd [1975] 1 All E.R. 504

Full judgment

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Byamukama v Kyampagi & 3 Others (Civil Application 139 of 2024) [2024] UGCA 289 (3 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.