Falcon Estates Ltd v Bismillah Trading Ltd (Miscellaneous Application No. 104 of 2015)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

A single Justice held that although applications for stay of execution must ordinarily first be made in the High Court, the existence of two conflicting ex-parte High Court orders over the same disputed land, both handed to police for enforcement, constituted special and rare circumstances justifying the Court of Appeal entertaining the application. For an interim stay it suffices to show a pending substantive application and a serious threat of execution; both being established, an interim stay was granted to maintain the status quo. The application to stay the consolidated High Court proceedings was dismissed as unjustified, and the prayer to restrain police was rendered unnecessary by the interim stay granted.

Outcome

Interim order of stay of execution granted to maintain the status quo; interim stay of High Court proceedings refused; costs to abide the outcome of the appeal.

Facts

The applicant is the registered owner of land in Muyenga comprised in Block 244 Plot 3542, over which the respondent claimed a right of access to its house. The applicant disputed the right of access and filed Civil Suit No. 188 of 2015 seeking an injunction. The respondent in turn filed Civil Suit No. 192 of 2015 against the applicant and Kampala City Council. On 7 April 2015 the applicant obtained an order from the Deputy Registrar in Miscellaneous Application No. 329 of 2015 maintaining the status quo by restraining the respondent from trespassing or claiming an easement. On 23 April 2015 the respondent obtained a temporary injunction in Miscellaneous Application No. 330 of 2015 from Justice Kwesiga maintaining existing access to the residence until the head suit was disposed of. Two conflicting High Court orders over the same land, both granted ex-parte, were given to police to enforce. The applicant sought interim orders pending a substantive application for stay of execution before a full bench.

Issues

1. Whether the application for interim orders was properly brought before the Court of Appeal rather than the High Court.
2. Whether the applicant satisfied the conditions for grant of an interim order for stay of execution.
3. Whether an interim order staying the High Court proceedings should be granted.

Orders

• An interim order of stay is granted to maintain the status quo pending the hearing and determination of the main application for stay of execution.
• The application for an interim stay of proceedings in the High Court is dismissed.
• No order made on the interim order to stop police, it having been rendered irrelevant.
• Costs of this application to abide the outcome of the appeal.

Rules and key headnotes

Legislation cited (4)

• Judicature (Court of Appeal Rules) Directions S.I. No.13-10 rule 2
• Judicature (Court of Appeal Rules) Directions S.I. No.13-10 rule 6
• Judicature (Court of Appeal Rules) Directions S.I. No.13-10 rule 43
• Judicature (Court of Appeal Rules) Directions S.I. No.13-10 rule 42(1)

Cases cited (4)

• Kyambogo University v Professor Isiah Ndiege (Civil Application No. 31 of 2013)
• P.K. Sengendo v Busulwa and Another (Civil Application No. 207)
• Lawrence Musiitwa Kyazze v Eunice Businghye
• Hwang Sung Industries Ltd v Tajdin Hussein and 2 Others (Civil Application No. 19 of 2008)

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