Wakilii

China Henan Int'l Cooperation Group Co. Ltd v Kyabahwa (H.C.Miscellaneous Application No. 467 of 2021)

High Court · [2021] UGCOMMC 102 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of decree and setting aside of garnishee order nisi pending appeal
Decision
Application dismissed with costs; judgment creditor may proceed with execution

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application for stay of execution and setting aside of the garnishee order nisi. The applicant failed to demonstrate a likelihood of success on appeal, having merely stated that the appeal raised pertinent questions of law without specifying them. The applicant also failed to prove it would suffer substantial or irreparable loss, as the decretal sum was a small fraction of the total project value and the applicant had already paid 60% of the contract price. The balance of convenience favoured allowing the judgment creditor to enforce the decree.

Outcome

Application dismissed with costs; judgment creditor may proceed with execution

Facts

The respondent obtained judgment against the applicant in Civil Suit No. 721 of 2020 on 19 March 2021. On 30 March 2021, the applicant was served with a garnishee order nisi under M.A No. 392 of 2021 garnishing the applicant's bank accounts at Stanbic Bank. The applicant filed multiple applications seeking stay of execution and setting aside of the garnishee order pending appeal. The applicant consolidated M.A No. 467 of 2021 and M.A No. 481 of 2021 for hearing. The underlying dispute arose from a contract executed in 2015 between the parties. The decretal sum was approximately four billion Ugandan shillings, while the total project value exceeded two hundred billion shillings. The applicant had already paid approximately 60% of the contract price to the respondent.

Issues

  1. Whether the applicant demonstrated a likelihood of success on appeal sufficient to warrant a stay of execution.
  2. Whether the applicant would suffer substantial or irreparable loss if execution of the decree was not stayed.
  3. Where the balance of convenience lies between staying execution and allowing the judgment creditor to enforce the decree.

Orders

  • Application for stay of execution dismissed.
  • Application to set aside garnishee order nisi dismissed.
  • Costs of the application awarded to the respondent.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant
For a court to grant a stay of execution pending appeal, the applicant must establish: (i) that the appeal has a likelihood of success or a prima facie case of the right to appeal; (ii) that the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted; (iii) if the first two conditions are not established, the court must consider where the balance of convenience lies; and (iv) that the application was instituted without delay.
Civil Procedure — Stay of Execution — Likelihood of Success
An applicant seeking stay of execution must demonstrate the likelihood of success by indicating the specific questions of law or fact to be raised on appeal. Merely stating that the appeal raises pertinent and substantial questions of law without specifying them is insufficient. The court must be satisfied that the appeal raises issues which merit consideration, though it will not delve into the merits at the interlocutory stage.
Civil Procedure — Stay of Execution — Pendency of Appeal
The pendency of an appeal is not a bar to a successful party's right to enforce a decree obtained, even by execution.
Civil Procedure — Stay of Execution — Substantial Loss
It is not enough to merely repeat the words of the code and state that substantial loss will result. The kind of loss must be specified, details must be given, and the conscience of the court must be satisfied that such loss will really ensue. The words 'substantial loss' must mean something in addition to and different from the ordinary loss to which every judgment debtor is necessarily subjected when he loses his case and is deprived of his property in consequence.
Civil Procedure — Stay of Execution — Irreparable Harm
There cannot be irreparable harm in paying money lawfully adjudged by a court of law. Should it turn out that the appeal is successful, the law provides for various means of recovering any monies or damages awarded from the respondent. A judgment creditor should not be inconvenienced or delayed in the enjoyment of the fruits of their litigation unless very good and convincing reasons are advanced.
Civil Procedure — Stay of Execution — Balance of Convenience
Where an applicant has failed to prove by affidavit evidence that it will suffer harm or loss or has an appeal with a high likelihood of success, the balance of convenience lies in not granting the application for stay of execution but in allowing the party with a judgment in hand to proceed with execution.

Legislation cited (4)

Cases cited (12)

  • Hon. Theodore Ssekikubo & Others v The Attorney General and Another (Constitutional Application No. 06 of 2013)
  • Nalunga Gladys v Edco Limited and Another (M.A No. 07 of 2013)
  • Gashumba Maniraquha v Sam Nkudiye (SCCA No. 24 of 2015)
  • Uganda Revenue Authority v Tembo Steels Limited (M.A No. 0521 of 2007)
  • National Pharmacy Limited Vs. Kampala City Council M9791 HCB 132
  • Dr. Ahmed Muhammed Kisuule v Greenland Bank (In liquidation) (SCCA No. 07 of 2010)
  • Tanzania Cotton Marketing Board v Cogecot Cotton Co. SA (1995-1998) 1 EA 312
  • Bansidhav Vs Pribku DavalAIR41 1954
  • Pan African Insurance Co. (U) Ltd v International Air Transport Association (M.A No. 086 of 2006)
  • American Cyanamid Co. Vs. Ethicon Ltd M9751 2 W.L.R. 316
  • DFCU Bank Ltd v Dr. Ann Persis Nakate Luseiiere (C.A.C.A No. 29 of 2003)
  • Fredrick Mukasa and another v Jade Petroleum (U) Ltd (M.A No. 2374 of 2016)

Full judgment

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

China Henan Int'l Cooperation Group Co. Ltd v Kyabahwa (H.C.Miscellaneous Application No. 467 of 2021) [2021] UGCommC 102 (9 April 2021)
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.