Wakilii

Emaku & Another v Emulu (Civil Application 76 of 2024)

Court of Appeal · [2024] UGCA 142 · 2024 Application Dismissed 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 the hearing of a civil appeal
Decision
Application for stay of execution dismissed; orders of the High Court remain executable pending appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A single judge of the Court of Appeal dismissed an application for a stay of execution pending appeal in a land trespass matter. The court held that the applicants failed to establish a prima facie case with a likelihood of success because their affidavits placed no material before the court beyond a bare assertion that the appeal had merit. They also failed to prove irreparable damage: they were mere tenants of the Departed Asians Custodian Board, which had not appealed and had withdrawn their allocation, and the apprehended loss in paying taxed costs was a monetary award capable of being ascertained and recompensed. The balance of convenience was not considered, as it arises only where the court is in doubt.

Outcome

Application for stay of execution dismissed; orders of the High Court remain executable pending appeal

Facts

The respondent, the registered proprietor of land comprised in LRV 142 Folio 14, Plot 18 Gweri Road, Soroti Municipality, sued the applicants and the Departed Asians Custodian Board for trespass in Soroti High Court Civil Suit No. 28 of 2018. The applicants claimed to be tenants of the Custodian Board under a letter dated 13 March 2018 and had declined to pay rent or vacate. The High Court found in the respondent's favour, declared the applicants trespassers and made an eviction order. A bill of costs was taxed and allowed at UGX 86,932,800, payable jointly by the applicants and the Custodian Board. The applicants appealed and sought a stay of execution; an earlier High Court application for stay (Miscellaneous Application No. 140 of 2023) had been dismissed. The Custodian Board did not appeal and, by letter dated 13 February 2023, withdrew the applicants' temporary allocation of the suit property.

Issues

  1. Whether the applicants adduced sufficient reasons to justify the grant of a stay of execution pending appeal.

Orders

  • The application is dismissed.
  • The costs of this application shall abide the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution — No Order Known as Temporary Stay of Execution
There is no order known as a temporary stay of execution; an applicant either seeks an order of stay of execution or a temporary injunction, and the court will treat the application according to its true substance.
Civil Procedure — Stay of Execution — Prima Facie Case and Likelihood of Success
An applicant for a stay of execution must place before the court material going beyond a mere statement that the appeal has a likelihood of success; the likelihood of success is the most important consideration and a bare assertion of merit in the affidavits is insufficient.
Civil Procedure — Stay of Execution — Irreparable Damage — Monetary Awards
Irreparable damage is damage that cannot be undone and for which no monetary recompense can restore the injured party; the enforcement of a taxed bill of costs is a monetary award capable of being ascertained and recompensed and therefore does not amount to irreparable damage.
Civil Procedure — Stay of Execution — Balance of Convenience
The court considers the balance of convenience only where it is in doubt after assessing likelihood of success and irreparable damage; where those conditions are not established, the balance of convenience need not be considered.

Legislation cited (5)

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

Cases cited (5)

  • Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Appeal No. 18 of 1990)
  • Dr. Ahmed Muhammed Kisuule v Greenland Bank (In Liquidation) (Civil Appeal No. 7 of 2020)
  • Gashumba Maniraguha v Samuel Nkundiye (Civil Application No. 24 of 2015)
  • Hon. Theodore Ssekikubo and Others v Attorney General and Another (Constitutional Application No. 6 of 2013)
  • Osman Kassim v Century Bottling Company Ltd (Civil Appeal No. 34 of 2019)

Full judgment

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

Emaku & Another v Emulu (Civil Application 76 of 2024) [2024] UGCA 142 (11 June 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.