Cheboi v Koroko (Civil Miscellaneous Application No. 105 of 2014)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
A single Justice held that an application for stay of execution pending appeal, where the matter may be made either in the High Court or the Court of Appeal, must under Rule 42(1) of the Court of Appeal Rules be made first in the High Court. While both courts have concurrent jurisdiction, the conditions in Lawrence Musiitwa Kyazze v Eunice Businghye must exist before the Court of Appeal entertains such an application at first instance. As no special or rare circumstances were shown and no reason was given for bypassing the High Court, the Justice declined jurisdiction and dismissed the application with costs, leaving the applicant free to file afresh in the High Court.
Outcome
Application declined and dismissed; applicant at liberty to file a fresh application in the High Court at Mbale
Facts
The applicant had been an appellant in High Court at Mbale Civil Appeal No. 22 of 2013, which was dismissed by Kawesa J on 14 January 2014. He lodged a notice of appeal and subsequently a second appeal to the Court of Appeal (Civil Appeal No. 27 of 2014). He filed both a substantive application for stay of execution (Application No. 104 of 2014) and the present interim application (Application No. 105 of 2014) on 20 March 2014 directly in the Court of Appeal, without first applying to the High Court. The applicant asserted he occupied the suit land and faced imminent eviction, which would cause substantial loss. The respondent contended the applicant had already been evicted on 18 March 2014, before the application was filed, and that the respondent was now in possession, leaving nothing to stay. No reason was advanced for not filing in the High Court first.
Issues
- Whether the Court of Appeal should entertain an application for stay of execution that was not first filed in the High Court.
- Whether special or rare circumstances existed justifying the Court of Appeal hearing the application at first instance.
Orders
- Application for adjournment refused.
- Civil Miscellaneous Application No. 105 of 2014 dismissed with costs.
- Applicant free to file a fresh application in the High Court.
- Civil Miscellaneous Application No. 104 of 2014 dismissed with no order as to costs.
Rules and key headnotes
Legislation cited (10)
- Judicature Act s.12(1)
- Rules of the Court of Appeal r.1(2)
- Rules of the Court of Appeal r.6(2)
- Rules of the Court of Appeal r.42(1)
- Rules of the Court of Appeal r.42(2)
- Rules of the Court of Appeal r.43(1)
- Rules of the Court of Appeal r.44(1)
- Rules of the Court of Appeal r.53
- Civil Procedure Rules Order XXXIX rule 4(3)
- Civil Procedure Rules Order XLVIII rule 1
Cases cited (1)
- Lawrence Musiitwa Kyazze v Eunice Businghye (Civil Application No. 18 of 1990)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.