Wakilii

Hawa Nyende & Abubaker Nyende v Kafeero Jamada, Mohamed Allibhai, Commissioner Land Registration & Mohamed Abdallah (Miscellaneous Application 175 of(2)

High Court · [2023] UGHC 175 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of Deputy Registrar's orders pending appeal
Decision
Application for stay of execution allowed pending hearing of appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted the applicants' application for stay of execution of the Deputy Registrar's orders pending appeal. The court found that the applicants had filed an appeal (by way of Miscellaneous Application No. 155 of 2023), that the appeal was not frivolous and had likelihood of success, that there was serious and imminent threat of execution evidenced by actions taken by the 4th respondent to seal premises and demand rent from tenants, and that the application was made without unreasonable delay. The court declined to order security for due performance, noting that the 4th respondent had not followed formal execution procedures and that ordering security would fetter the applicants' right of appeal. The court determined that refusing the stay would inflict greater hardship on the applicants pending determination of the main suit regarding property ownership.

Outcome

Application for stay of execution allowed pending hearing of appeal

Facts

The applicants filed Civil Suit No. 8 of 2023 against the respondents seeking to safeguard their proprietary interest in land comprised in Plot 21 Scindia Road Jinja. They filed Miscellaneous Applications No. 14 and 15 of 2023 seeking temporary and interim injunctions. The Deputy Registrar ruled in favour of the respondents on 22 June 2023, ordering that the applicants remain in occupation of one room on condition that they pay rent including arrears to the court within one month, restraining them from holding out as landlords, and declaring them mere tenants with no right to restrain the registered proprietor from dealing with the property. Following the ruling, the 4th respondent on 16 July 2023 descended on the property with police and LC officials, sealed off shops, and threatened to evict tenants unless they signed new tenancy agreements with him. The applicants filed an appeal (Misc. Application No. 155 of 2023) on 30 June 2023 and the instant application for stay of execution on 24 July 2023. The applicants' family had allegedly been in occupation of the premises since 1972, initially as tenants who paid rent until 2020 when they discovered alleged fraud perpetrated by the 1st and 2nd respondents.

Issues

  1. Whether the applicants lodged a notice of appeal
  2. Whether the applicants will suffer substantial loss if stay of execution is not granted
  3. Whether the applicants should be ordered to pay security for due performance of the decree/order
  4. Whether there is a serious and imminent threat of execution of a decree/order to render the appeal nugatory
  5. Whether the appeal is frivolous and does not have a high likelihood of success
  6. Whether the application was made without unreasonable delay
  7. Whether the refusal to grant the stay would inflict more hardship than it would avoid

Orders

  • The application for stay of execution of the Orders of the Learned Deputy Registrar in Miscellaneous Application No. 14 of 2023 is allowed.
  • The stay of execution shall remain in force pending the hearing of the Appeal.
  • Costs of this application awarded to the Applicants.

Rules and key headnotes

Civil Procedure — Stay of Execution — Notice of Appeal — Miscellaneous Application as Appeal
A Miscellaneous Application filed by Notice of Motion under Order 50 Rule 8 of the Civil Procedure Rules seeking to appeal orders of a Registrar constitutes an appeal within the meaning of that provision, and failure to formally term it as an appeal is not fatal to an application for stay of execution.
Civil Procedure — Stay of Execution — Principles for Grant
An application for stay of execution pending appeal is designed to preserve the subject matter in dispute so that the right of the appellant exercising their undoubted right of appeal is safeguarded and the appeal, if successful, is not rendered nugatory. The conditions for granting stay include: (1) lodging a notice of appeal; (2) that substantial loss may result unless the order is made; (3) the application was made without unreasonable delay; (4) security has been given for due performance; (5) the appeal is not frivolous and has likelihood of success; (6) there is serious or imminent threat of execution; and (7) refusal would inflict more hardship than it would avoid.
Civil Procedure — Stay of Execution — Imminent Threat of Execution — Cogent Evidence Required
To satisfy the requirement of serious and imminent threat of execution, an applicant must adduce cogent evidence of such threat. Evidence of the respondent sealing premises, threatening eviction of tenants, and demanding rent pursuant to court orders constitutes cogent evidence of imminent threat of execution.
Civil Procedure — Stay of Execution — Security for Due Performance — Discretion of Court
Security for due performance is not a condition precedent to the grant of stay of execution. The decision whether to order security for due performance must be made according to the circumstances of each particular case in consonance with the probability of success of the appeal. Where a respondent has not followed formal execution procedures and has taken enforcement steps outside court process, ordering security would be unjust and would fetter the applicant's right of appeal.
Civil Procedure — Stay of Execution — Likelihood of Success — Assessment
In assessing whether an appeal has likelihood of success for purposes of stay of execution, the court ought not to delve into the merits of the appeal but rather determine whether the appeal raises arguable points to be determined by the appellate court. An appeal raising important questions such as whether orders made were final rather than interlocutory in nature has likelihood of success.

Legislation cited (6)

Cases cited (16)

  • Equity Bank Uganda Ltd v Nicholas Were (Miscellaneous Application No. 604 of 2013)
  • Kampala Capital City Authority v Mulangira Joseph (Miscellaneous Application No. 26 of 2016)
  • Kawanga v Namyalo and Another (Miscellaneous Application No. 12 of 2017)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal No. 341 of 2013)
  • Attorney General of the Republic of Uganda v The East African Law Society and Another (EACA Application No. 1 of 2013)
  • Imperial Royale Hotel Ltd and 2 Others v Ochan Daniel (Miscellaneous Application No. 111 of 2012)
  • Isaac W Ochieng and Another v Sarah Nakyobe (Miscellaneous Application No. 1619 of 2021)
  • Hon Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 3 of 2014)
  • Amuanaun Sam v Opolot David (Miscellaneous Application No. 3 of 2014)
  • Wilson v Church (1879) 12 Ch D 454
  • Global Capital Save 2004 Ltd and Another v Alice Okiror and Another (Miscellaneous Application No. 485 of 2012)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Application No. 18 of 1990)
  • Uganda Revenue Authority v Mohammed Tumusiime (Miscellaneous Application No. 440 of 2022)
  • Kiganda John and Another v Yakobo M.N Senkungu and 5 Others (Supreme Court Civil Application No. 16 of 2017)
  • Gashumba v Nkudiye (Supreme Court Civil Application No. 24 of 2015)
  • Mohammed Mohamed Hamid v Roko Construction Ltd (Supreme Court Miscellaneous Application No. 23 of 2017)

Full judgment

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Hawa Nyende & Abubaker Nyende v Kafeero Jamada, Mohamed Allibhai, Commissioner Land Registration & Mohamed Abdallah (Miscellaneous Application 175 of(2)
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.