Wakilii

Gashumba Maniraguha v Sam Nkudiye (Civil application No. 24 of 2015)

Supreme Court · [2015] UGSC 7 · 2015 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the Supreme Court for a stay of execution of a Court of Appeal judgment pending a third appeal
Decision
Application granted; execution of the Court of Appeal judgment stayed on conditions pending determination of the appeal

Observed later treatment

Treatment recorded in citing cases followed in 3 · applied in 1 Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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.

Good law Followed in 3 cases and applied in 1 case, with no adverse treatment recorded. Citations rising — 62 citing cases on record, 45 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court granted a stay of execution pending the applicant's intended third appeal. Although the applicant had not obtained the certificate of importance required by section 6(2) of the Judicature Act, the absence of the certificate did not render the appeal incompetent at this stage, because under rules 40(1) and 72(4) it need not be obtained before lodging the notice of appeal, and the applicant could still apply for extension of time. The intended appeal raised the substantial question of res judicata and was not frivolous; execution was incomplete as a permanent house remained standing, so substantial loss would result; and the application was made without undue delay. Kisule (requiring leave before appeal) was distinguished.

Outcome

Application granted; execution of the Court of Appeal judgment stayed on conditions pending determination of the appeal

Facts

The dispute concerned land at Rugarama, Ndorwa, Kabale. In 1981 Ernesta Kashumba (Gashumba) sued Kosea Nkundiye for trespass, claiming his mother had acquired the land from a church mission in 1933 and that he had inherited it in 1975. Nkundiye claimed lawful ownership through the Muluka chief, asserting he had compassionately allowed Gashumba's mother to live there. A Grade 1 Magistrate gave judgment for Gashumba, but on appeal Katutsi J of the High Court allowed Nkundiye's appeal on 12 May 2004. Both original parties died and their estate administrators, the present parties, continued the dispute. The Court of Appeal dismissed Gashumba's Civil Appeal No. 23 of 2005 on 21 February 2014. He filed a notice of appeal to the Supreme Court and sought to stay execution of the Court of Appeal judgment, contending execution would render his appeal nugatory as his livelihood depended on the land where his permanent home still stood.

Issues

  1. Whether the applicant established grounds for an order staying execution of the Court of Appeal judgment pending his appeal to the Supreme Court.
  2. Whether the applicant's failure to obtain a certificate of importance under section 6(2) of the Judicature Act for a third appeal defeats the likelihood of success of his intended appeal.
  3. Whether the costs of the application should be provided for.

Orders

  • The judgment and decree in Civil Appeal No. 23 of 2005 is hereby stayed until disposal of the applicant's appeal or until further orders.
  • The applicant shall lodge the application for the certificate of importance in the Court of Appeal within fifteen (15) days from the date of this order.
  • If fifteen (15) days lapse without the applicant lodging the application, the stay of execution shall lapse automatically.
  • The costs of this application shall abide the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution Pending Appeal — Governing Principles
To obtain a stay of execution pending appeal an applicant must establish that the appeal has a likelihood of success or a prima facie right of appeal, that irreparable damage will be suffered or the appeal rendered nugatory if a stay is refused, and that the application was brought without undue delay; where likelihood of success and nugatory effect are not established the court considers the balance of convenience.
Civil Procedure — Third Appeal — Certificate of Importance — Effect on Competence
The absence of a certificate that the appeal concerns a matter of law of great public or general importance under section 6(2) of the Judicature Act does not, of itself, render an intended third appeal incompetent at the stay-of-execution stage, because rules 40(1) and 72(4) of the Supreme Court Rules permit a notice of appeal to be lodged before the certificate is obtained, and the applicant may apply for extension of time to seek it.
Civil Procedure — Stay of Execution — Whether Execution Complete
Where execution by demolition and dispossession has only partly been carried out and a permanent structure remains standing, the process of execution is not complete, and substantial loss will result to the applicant if a stay is refused and the appeal later succeeds.

Legislation cited (10)

Cases cited (4)

  • Dr. Ahmed Mohammad Kisule v Greenland Bank (In Liquidation) (Civil Appeal No. 7 of 2010)
  • Lawrence Musitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
  • Hwang Sung Industries Ltd v Tajdin Hussein & Ors (Civil Application No. 19 of 2008)
  • Hon. Theodore Ssekikubo & Others v Attorney General and Another (Constitutional Application No. 6 of 2013)

Cases citing this judgment (30)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Gashumba Maniraguha v Sam Nkudiye (Civil application No. 24 of 2015) [2015] UGSC 7 (23 April 2015)
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.