Byaruhanga & 4 Ors v Musimenta & Anor (Civil Application No. 278 of 2019)

Observed later treatment

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

The Court of Appeal overruled all three preliminary objections. It held that where a trial judge's judgment is self-executory, exceptional circumstances exist justifying a direct application to the Court of Appeal without first applying to the High Court. Any person with knowledge of the facts, including a beneficiary of the estate, may depone to a supporting affidavit under Rule 44(1); the deponent need not be a party. Since execution had been resisted and was not complete, a threat of execution still obtained and the application was not overtaken by events. Finding the conditions for interim relief satisfied, the Court granted an interim order staying execution pending disposal of the substantive stay application.

Outcome

Interim order staying execution granted pending disposal of the substantive application for stay or the appeal

Facts

The late Alifunsi Kibande owned Plot 8 Bugongi Road, Kabale Municipality, on which he had built a four-unit rental building. The applicants, claiming to be among his fifteen children and beneficiaries under a 2013 declaration/distribution deed, contended they were to inherit the property equally. The first respondent, a sibling, claimed the land had been given to her and sold part of it to the second respondent. The children instituted High Court Civil Suit No. 35 of 2014 to recover the property but lost. Judgment delivered on 15 July 2019 directed the respondents to take immediate possession of part of the suit property. The applicants lodged a Notice of Appeal on 18 July 2019 and filed a substantive application for stay (No. 255 of 2019). They alleged the respondents attempted to execute without a court warrant, bringing goons who destroyed part of the fence on 25 July 2019, and later mobilised prisoners, but were resisted. They sought an interim stay pending disposal of the substantive application.

Issues

1. Whether the application for interim stay was properly filed directly in the Court of Appeal without first being made in the High Court under Rule 42(1).
2. Whether the deponent, who was not a party to the suit or appeal, had capacity to swear the supporting affidavit under Rule 44(1).
3. Whether the application had been overtaken by events because the judgment had been partly executed.
4. Whether the applicants had satisfied the conditions for the grant of an interim order of stay of execution.

Orders

• The first preliminary objection is overruled.
• The second preliminary objection is overruled.
• The third preliminary objection is disallowed.
• An order issues staying execution of the Judgment of the High Court at Kabale delivered on 15 July 2019 in Civil Suit No. 35 of 2014 until disposal of the substantive Civil Application No. 255 of 2019 or the appeal.
• The Registrar is directed to fix Application No. 255 of 2019 for hearing at the earliest date possible.
• Costs of this application shall follow the event in the Substantive Application No. 255 of 2019.

Rules and key headnotes

Legislation cited (9)

• Judicature (Court of Appeal Rules) Directions, SI 13-10 r.2(2)
• Judicature (Court of Appeal Rules) Directions, SI 13-10 r.6(2)
• Judicature (Court of Appeal Rules) Directions, SI 13-10 r.42(1)
• Judicature (Court of Appeal Rules) Directions, SI 13-10 r.42(2)
• Judicature (Court of Appeal Rules) Directions, SI 13-10 r.43
• Judicature (Court of Appeal Rules) Directions, SI 13-10 r.44(1)
• Judicature (Court of Appeal Rules) Directions, SI 13-10 r.76
• Civil Procedure Rules O.19 r.3
• Civil Procedure Rules O.39 r.4(3)

Cases cited (6)

• Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
• Shshikani Patel v Akampulira Michael (Civil Application No. 98 of 2003)
• Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696
• P.K. Sengendo v Busulwa Lawrence & Another (Civil Miscellaneous Application No. 207 of 2014)
• Francis Drake Lubega & Another v The Attorney General (Miscellaneous Application No. 13 of 2015)
• Hwang Sung Industries Ltd v Tajdin Hussein & Two Others (Civil Application No. 19 of 2008)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Uganda Law Society and Another v Mugisha Hashim Mugisha and Others (Civil Application 99 of 2025)

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