Wakilii

George Nyakaana v Beatrice Kobusingye Nyakaana (Civil Suit No.84 of 1989)

High Court · [1991] UGHC 13 · 1991 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of judgment pending appeal to the Supreme Court
Decision
Application dismissed with costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for stay of execution dismissed. The court held that the applicant failed to show substantial loss would result without a stay, failed to provide security for due performance of the decree as required by Order 39 Rule 4(3)(c), and that the affidavits contained half-truths without particularising alleged threats to sell estate property or evict children. The court found recalling probate would jeopardise the estate pending appeal.

Outcome

Application dismissed with costs to the respondent

Facts

The respondent/plaintiff had obtained judgment on 15 February 1991 ordering removal of a caveat the applicant/defendant had lodged against the grant of probate. On 20 February 1991 the court granted probate to the respondent. On 19 February 1991 the applicant filed notice of appeal to the Supreme Court. The applicant then brought this application seeking stay of execution of the judgment pending the appeal, alleging the respondent threatened to sell off the estate and evict children, and that the estate was in danger of violence and damage. The respondent opposed the application, arguing the applicant failed to provide particulars of alleged threats, failed to furnish security, and that probate had already been granted making the court functus officio.

Issues

  1. Whether the court should grant a stay of execution of judgment pending appeal to the Supreme Court.
  2. Whether the applicant demonstrated sufficient cause for stay of execution under Order 39 Rule 4(2) of the Civil Procedure Rules.
  3. Whether the applicant satisfied the conditions under Order 39 Rule 4(3) of the Civil Procedure Rules, particularly regarding substantial loss and security.

Orders

  • Application for stay of execution dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Stay of Execution — Jurisdiction of Trial Court
The High Court which passed a decree has jurisdiction under Order 39 Rule 4(2) of the Civil Procedure Rules to entertain an application for stay of execution of that decree pending appeal, notwithstanding that Order 39 deals generally with appeals to the High Court.
Civil Procedure — Stay of Execution — Conditions for Grant
No order for stay of execution shall be made unless the court is satisfied that substantial loss would result to the applicant unless the order is made, that the application has been made without unreasonable delay, and that security has been given by the applicant for due performance of such decree or order as may ultimately be binding upon him.
Civil Procedure — Stay of Execution — Substantial Loss
An applicant seeking stay of execution must particularise in affidavit evidence the nature of the substantial loss or irreparable damage likely to be suffered if the stay is not granted. Vague allegations of threats to sell estate property, evict children, or that violence might erupt, without identifying prospective purchasers, which properties are threatened, or the source of violence, are insufficient.
Civil Procedure — Stay of Execution — Security for Due Performance
Failure to furnish security for due performance of the decree as required by Order 39 Rule 4(3)(c) is fatal to an application for stay of execution. The provision requiring security is not idle but ensures that if inconvenience, pecuniary or otherwise, accrues to the respondent consequent upon stay of execution, there is security to cushion such eventuality.

Legislation cited (4)

Cases cited (2)

  • Wilson vs. Church No. 2 1879 12 CR D P. 454
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)

Full judgment

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

George Nyakaana v Beatrice Kobusingye Nyakaana (Civil Suit No.84 of 1989) [1991] UGHC 13 (30 April 1991)
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.