Erick Kiggundu v Teddy Kyeyune Kaddu (Civil Application No. 372 of 2024)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a single-Justice application for a stay of execution, the Court overruled three preliminary objections: an applicant who has lodged a notice of appeal acquires locus under Rule 6(2) even if a stranger to the suit; and an application is not res judicata where a stay was first refused by the High Court. On the merits, however, the Court refused the stay. The applicant failed to show substantial loss because execution was already complete — the suit land had been registered in the names of the respondent and her former husband — and the balance of convenience favoured the registered respondent. With no status quo left to preserve, the application was dismissed with costs following the cause.

Outcome

Application for stay of execution dismissed; preliminary objections overruled but the stay refused on the merits because execution was already complete

Facts

The applicant, a stranger to Divorce Cause No. 02 of 2018, claimed to have purchased suit land (Kyadondo Block 246 Plot 1635 at Kyeitabye) from Johka Print Machinery Ltd and to have been in possession until evicted. In the divorce cause the court found the land was matrimonial property of the respondent and her former husband, that it had been fraudulently transferred to Johka Print Machinery Ltd as a device to defeat the respondent's interest, and cancelled Johka's title — so Johka could pass no interest to the applicant. An order for attachment and sale (HC EMA No. 24 of 2023) was issued to satisfy a bill of costs arising from the divorce cause. The applicant lodged a notice of appeal and sought a stay pending his appeal, alleging the land was about to be sold. By the time of the application the suit property had already been registered in the names of the respondent and her former husband as tenants in common.

Issues

1. Whether the applicant, who was not a party to the originating divorce cause, had locus standi to apply for a stay of execution.
2. Whether the application for stay of execution was res judicata.
3. Whether the applicant satisfied the conditions for the grant of a stay of execution pending appeal.

Orders

• All the preliminary objections are overruled.
• The application is dismissed.
• Costs will follow the cause.

Rules and key headnotes

Legislation cited (9)

• Judicature (Court of Appeal) Rules SI 13-10 r.2(2)
• Judicature (Court of Appeal) Rules SI 13-10 r.6(2)(b)
• Judicature (Court of Appeal) Rules SI 13-10 r.76
• Judicature (Court of Appeal) Rules SI 13-10 r.78(1)
• Judicature (Court of Appeal) Rules SI 13-10 r.105(1)
• Civil Procedure Rules O.43 r.4(2),(3),(5)
• Civil Procedure Act Cap 282 s.98
• Civil Procedure Act Cap 282 s.7
• Judicature Act s.33

Cases cited (5)

• Hon Theodore Ssekikubo and 4 Others v Attorney General and Another (Constitutional Application No. 6 of 2013)
• Jani Properties Limited vs Dar-es-Salma City Council (1996) EA 281
• David Etuket v Okonye Mustafa & Anor (Civil Appeal No. 170 of 2009)
• Asante Aviation Ltd and 3 Others v Stanbic Bank Uganda and Another (Civil Application No. 286 of 2020)
• Lubega & Another v Ssinabulya & 2 Others [2024] UGSC 38

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