Wakilii

Fred Mushabe and Others v Kajumba Proscovia (HCT-01-LD-MA-0016-2026)

High Court · [2026] UGHC 513 · 2026 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of judgment and decree pending appeal, arising from Civil Suit No. 038 of 2021
Decision
Stay of execution granted conditionally upon provision of security

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted a stay of execution of a judgment and decree in a land dispute pending appeal. The court held that filing a Notice of Appeal satisfies the requirement of a pending appeal for purposes of invoking jurisdiction under Order 43. The applicants demonstrated substantial loss through imminent eviction from land on which they reside and derive livelihood, brought the application without unreasonable delay, and undertook to provide security. The stay was granted conditionally upon deposit of UGX 50,000,000 as security within 30 days.

Outcome

Stay of execution granted conditionally upon provision of security

Facts

The Applicants, twenty-four individuals, were defendants in Civil Suit No. 038 of 2021 in which judgment and decree were entered against them on 19 February 2026. The judgment concerned disputed land. Following judgment, the Respondent initiated two execution applications: Execution Application No. 25 of 2026 seeking a decretal sum of UGX 749,375,100, and Execution Application No. 17 of 2026 which resulted in issuance of an eviction notice. The Applicants filed a Notice of Appeal on 23 February 2026 and applied for certified copies of proceedings to facilitate filing a Record of Appeal. The Applicants reside on and derive their livelihood from the disputed land. The Respondent opposed the stay application, alleging that the Applicants had engaged in acts of trespass and destruction of property by cutting trees for timber and charcoal, and that one applicant had previously been held in contempt of court in Miscellaneous Application No. 13 of 2024.

Issues

  1. Whether the Applicants have demonstrated the existence of a pending appeal sufficient to ground an application for stay of execution.
  2. Whether the Applicants will suffer substantial loss if the stay is not granted.
  3. Whether the application was brought without unreasonable delay.
  4. Whether the Applicants have offered or are willing to provide security for the due performance of the decree.
  5. Whether the Applicants' alleged conduct disentitles them to equitable relief on grounds of unclean hands.

Orders

  • Stay of execution of the judgment and decree in Civil Suit No. 038 of 2021 granted pending hearing and final determination of the intended appeal.
  • Applicants to deposit UGX 50,000,000 into court within 30 days as security for due performance of the decree.
  • In default of deposit within the stipulated period, the stay shall automatically lapse.
  • Costs of the application to abide the outcome of the appeal.

Rules and key headnotes

Stay of Execution — Pending Appeal — Requirement of Pending Appeal
The formal lodging and serving of a valid Notice of Appeal satisfies the legal requirement of a pending appeal to anchor an application for stay of execution. A formal Notice of Appeal, not necessarily the final Memorandum or full Record of Appeal, is sufficient to legally invoke the court's jurisdiction for a stay.
Stay of Execution — Substantial Loss — Eviction from Land
Substantial loss for purposes of stay of execution is not to be understood in purely monetary terms but is a qualitative concept referring to loss of real worth or irreparable harm. Eviction from land upon which one resides and derives livelihood constitutes grave and irreversible disruption that cannot be adequately compensated by damages, and once such displacement occurs, restoration of the status quo becomes difficult or impossible even if the appeal succeeds.
Stay of Execution — Security for Due Performance of Decree
The requirement for security for due performance of the decree is not intended to defeat the right to seek a stay, but rather to balance the interests of the parties by safeguarding the respondent against potential prejudice. The court retains discretion to impose appropriate conditions as to security, and an express undertaking to provide such security as the court may order is sufficient to satisfy this requirement.
Stay of Execution — Unclean Hands — Allegations of Misconduct
Allegations of misconduct by an applicant, unless clearly established, should not be used to summarily shut out a party from the exercise of the right of appeal, particularly where the consequences of refusal would be drastic and irreversible. Such allegations remain contested matters that cannot be conclusively determined at the interlocutory stage of a stay application.
Stay of Execution — Balancing of Interests
In determining an application for stay of execution, the court must strike a balance between the right of a successful litigant to enjoy the fruits of judgment and the right of an aggrieved party to pursue an appeal without that appeal being rendered nugatory. Where the risk of substantial loss to the applicant coupled with imminent threat of execution outweighs the prejudice to the respondent which can be mitigated by security, the scale tilts in favour of preserving the status quo pending appeal.

Legislation cited (9)

Cases cited (10)

  • Mangeni Dismus Wejuli v Magero Alfred and Others [2025] UGCA 247
  • Walusimbi Mustafa v Musenze Lukia (Miscellaneous Application No. 232 of 2018)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • P.K. Sengendo v Busulwa Lawrence & Male Abdu (Court of Appeal Civil Application No. 207 of 2014)
  • Mugisa Fortunate & Another v Rev. G.W. Rutabalengya (Miscellaneous Application No. 102 of 2021)
  • Anifa Bangirana Kawooya v Attorney General & Another (Constitutional Court Miscellaneous Application No. 46 of 2010)
  • Nakibuuka v Sematimba & Others [2014] UGHCFD 36
  • Makula International Ltd v Cardinal Nsubuga & Another [1982] HCB 11
  • Impressa Ing Fortunato Federice v Irene Nabwire (Supreme Court Civil Suit No. 3 of 2000)
  • Hon. Theodore Ssekikubo & Ors v Attorney General & Ors (Constitutional Application No. 06 of 2013)

Full judgment

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Fred Mushabe and Others v Kajumba Proscovia (HCT-01-LD-MA-0016-2026) [2026] UGHC 513 (20 May 2026)
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.