Wakilii

Cherukut Moses v Chebut Patricia (Miscellaneous Application No. 51 of 2024)

High Court · [2025] UGHC 667 · 2025 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of a magistrate's court decree pending intended appeal to the High Court
Decision
Application for stay of execution dismissed with costs to the respondent

Observed later treatment

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Holding

Held that an application for stay of execution under Order 22 Rule 26 of the Civil Procedure Rules requires two simultaneous proceedings — one at execution stage and another pending suit between the same parties. Where an applicant seeks stay pending an intended appeal not yet filed, the proper procedure is Order 43 Rule 4. The applicant failed to satisfy the mandatory conditions for stay of execution: no substantive appeal had been filed, the application was made with unreasonable delay (one and a half years after judgment), no evidence of irreparable loss that could not be compensated by damages, and no security offered. Application dismissed.

Outcome

Application for stay of execution dismissed with costs to the respondent

Facts

The respondent obtained judgment in her favour in Civil Suit No. 004 of 2019 on 2 September 2022 at Kapchorwa Chief Magistrate's Court, where she was declared lawful owner of suit land and granted vacant possession. The applicant filed this application on 28 February 2024 (approximately one and a half years after judgment) seeking to stay execution of the decree and orders, stating he intended to appeal. At the time of filing, the applicant had not filed a substantive appeal but only an application for leave to appeal out of time. The respondent had commenced execution proceedings and served the applicant with a notice to show cause on 20 February 2024. The applicant's counsel failed to file written submissions as scheduled.

Issues

  1. Whether the applicant has a substantive pending appeal?
  2. Whether there is serious or imminent threat of execution of the decree or order and if the application is not granted, the appeal would be rendered nugatory?
  3. Whether the applicant would suffer substantial loss?
  4. Whether the application has been made without unreasonable delay?
  5. Whether the appeal has a high likelihood of success?
  6. Whether the applicant has given security for due performance of the decree?

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Stay of Execution — Order 22 Rule 26 — Applicability
Order 22 Rule 26 of the Civil Procedure Rules applies where there are simultaneously two proceedings: one at the execution stage filed by the decree holder against the judgment debtor, and another pending suit filed by the judgment debtor against the decree holder. The rule is intended to allow for adjustment of claims or prevention of multiplicity of execution proceedings, not to stay execution pending an intended appeal.
Civil Procedure — Stay of Execution — Proper Procedure Where Appeal Intended
Where a party seeks to stay execution of a judgment pending an intended appeal, the proper procedure is to move court under Order 43 Rule 4 of the Civil Procedure Rules, not Order 22 Rule 26. Order 43 Rule 4 specifically caters for stay of execution where a party has appealed or intends to appeal against the judgment of a trial court.
Civil Procedure — Stay of Execution — Mandatory Conditions Under Order 43 Rule 4
For an order for stay of execution to be granted under Order 43 Rule 4, the applicant must satisfy six mandatory conditions: (a) that a substantive appeal has been lodged; (b) that there is serious or imminent threat of execution; (c) that substantial loss may result unless stay is granted; (d) that the application has been made without unreasonable delay; (e) that the appeal has a high likelihood of success; and (f) that security has been given for due performance of the decree. Failure to satisfy any of these conditions is fatal to the application.
Civil Procedure — Stay of Execution — Requirement of Substantive Appeal
An application for stay of execution depends on the existence of an appeal. Where an applicant has not filed a substantive appeal but only an application for leave to appeal out of time, there is no pending appeal to support a stay of execution application. An appeal to the High Court is commenced by filing a memorandum of appeal, not a notice of appeal.
Civil Procedure — Stay of Execution — Irreparable Loss
To satisfy the condition of substantial loss, an applicant must show by clear evidence that if execution proceeds, there may be some irreparable loss caused. Irreparable loss is not every harm that may possibly be suffered, but only that harm which cannot be compensated by an award of damages. A bare assertion of irreparable loss without demonstrating that such loss cannot be compensated by damages is insufficient.
Civil Procedure — Stay of Execution — Unreasonable Delay
An application for stay of execution filed one and a half years after delivery of judgment, without explanation for the delay, constitutes unreasonable delay and fails to satisfy the mandatory condition that the application be made without unreasonable delay. The time limit for filing an appeal is 45 days from the date of the decree or order under Section 79(1)(a) of the Civil Procedure Act.

Legislation cited (11)

Cases cited (6)

  • IT Office Uganda Limited v Tropical Bank Limited [2024] UGCommC 227
  • Hon. Ssekikubo & Ors v Attorney General & Ors (Constitutional Application No. 03 of 2014)
  • Dr. Ahmed Muhammed Kasule v Greenland Bank in Receivership (Supreme Court Civil Application No. 07 of 2010)
  • Wilson Mukiibi v James Semusambwa (Supreme Court Civil Application No. 9 of 2003)
  • America Cyanamid Co Ltd v Ethicon Ltd [1975] AC 96
  • The Annot Lyle (1886) II PD 114

Full judgment

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Cherukut Moses v Chebut Patricia (Miscellaneous Application No. 51 of 2024) [2025] UGHC 667 (8 August 2025)
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.