Wakilii

Hawa Nyende & Abubaker Nyende v Kafeero Jamada, Mohamed Allibhai, Commissioner Land Registration & Mohamed Abdallah (Miscellaneous Application 175 of 2023)

High Court · [2023] UGHC 241 · 2023 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 in Miscellaneous Application No. 14 of 2023 pending appeal
Decision
Stay of execution granted pending appeal; applicants permitted to continue occupation as status quo until appeal determination

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 the Deputy Registrar's orders pending appeal. The court found that the applicants had lodged a pending appeal which was not frivolous and had a likelihood of success; that there was a serious and imminent threat of execution rendering the appeal nugatory; that the application was filed without unreasonable delay; and that refusing the stay would inflict greater hardship on the applicants than granting it. The court declined to order security for due performance, noting that the respondent had not followed formal execution procedures.

Outcome

Stay of execution granted pending appeal; applicants permitted to continue occupation as status quo until appeal determination

Facts

The applicants filed Civil Suit No. 8 of 2023 claiming proprietary interest in Plot 21 Scindia Road Jinja. They sought a temporary injunction and interim injunction. The Deputy Registrar ruled in favour of the respondents on 22 June 2023, ordering the applicants to remain in occupation of one room on condition of paying rent and arrears to court within one month, restraining them from holding themselves out as landlords, and granting the respondents liberty to access and improve the property. The applicants filed an appeal on 30 June 2023 and this application for stay of execution on 24 July 2023. On 16 July 2023, the 4th respondent with police and local council officials descended on the property, sealed shops, and threatened to evict tenants unless they signed tenancy agreements with the 4th respondent.

Issues

  1. Whether the application for stay of execution of the orders made by the High Court Deputy Registrar on 22 June 2023 should be granted pending the hearing of the appeal.

Orders

  • Application for stay of execution allowed.
  • Orders of the Deputy Registrar in Miscellaneous Application No. 14 of 2023 stayed pending the hearing of the appeal.
  • No order for security for due performance.
  • Costs awarded to the applicants.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions 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 the undoubted right of appeal is safeguarded and the appeal, if successful, is not rendered nugatory.
Civil Procedure — Stay of Execution — Notice of Appeal Requirement
A miscellaneous application filed by notice of motion seeking to set aside orders of a Deputy Registrar constitutes an appeal within the meaning of Order 50 Rule 8 of the Civil Procedure Rules, and failure to term it expressly as an appeal is not fatal.
Civil Procedure — Stay of Execution — Threat of Execution
Where a party served a court order on third-party tenants demanding rent, closed business premises, and threatened evictions following the court order, this constitutes cogent evidence of a serious and imminent threat of execution sufficient to warrant a stay.
Civil Procedure — Stay of Execution — Security for Due Performance
Security for due performance is not mandatory and should be decided on the circumstances of each case. Where the successful party has not followed formal execution procedures and has taken self-help measures, it would be unjust to order security for due performance as this would handcuff the applicant's right of appeal.
Civil Procedure — Stay of Execution — Balance of Hardship
Where a main suit concerning ownership of property remains pending determination and there is confusion among occupants as to whom rent should be paid, refusal to grant a stay of execution would inflict greater hardship on the applicants than granting it.

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 (Civil 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. 03 of 2014)
  • Amuanaun Sam v Opolot David (Miscellaneous Application No. 3 of 2014)
  • Wilson vs Church (1879) volume 12Chd 454
  • Global Capital Save 2004 Ltd and Another v Alice Okiror and Another (High Court 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 (High Court Miscellaneous Application No. 0440 of 2022)
  • Kiganda John and Another v Yakobo M.N Senkungu and 5 Others (Civil Application No. 16 of 2017)
  • Gashumba v Nkudiye (Civil Application No. 24 of 2015)
  • Mohammed Mohamed Hamid v Roko Construction Ltd (Miscellaneous Application No. 23 of 2017)

Full judgment

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

Hawa Nyende & Abubaker Nyende v Kafeero Jamada, Mohamed Allibhai, Commissioner Land Registration & Mohamed Abdallah (Miscellaneous Application 175 of 2023) [2023] UGHC 241 (26 October 2023)
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.