Wakilii

Hon. Hajji Mohammed Kato Katoto v Justus Kyabahwa (Civil Application No. 1168 of 2023)

Court of Appeal · [2023] UGCA 408 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application before a single Justice for stay of execution pending appeal, arising from a summary-procedure decree of the High Court (Commercial Court)
Decision
Application for stay of execution pending appeal dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Hearing the application as a single Justice, the Court dismissed the application for a stay of execution pending appeal. While the application had been filed without unreasonable delay, the applicant failed on every other condition: he produced no cogent evidence of substantial loss or irreparable harm beyond a bare assertion about his political reputation; the decree was for recovery of a liquidated sum which, being monetary, could be refunded if the appeal succeeded; the appeal (arising from summary procedure with no further evidence to be adduced) had no demonstrated likelihood of success; and the applicant was reluctant to furnish security for due performance. The balance of convenience favoured the respondent decree holder.

Outcome

Application for stay of execution pending appeal dismissed

Facts

The respondent had sued the applicant by summary procedure under Order 36 of the Civil Procedure Rules to recover a liquidated sum of USD 100,000 said to have been extended to the applicant. The applicant was denied leave to appear and defend, and judgment was entered against him; he appealed (Civil Appeal No. 252 of 2023). A Notice to Show Cause why execution should not issue was issued in the Commercial Court on 27 October 2023, and the applicant's earlier High Court application for stay was dismissed. The applicant then sought a stay of execution from the Court of Appeal pending the appeal, contending that his signature on the acknowledgment of the debt was forged, that he would suffer substantial loss to his political reputation as a Member of Parliament, and that he was prepared to grant security. The respondent opposed the application, asserting the decree was purely monetary and refundable, the appeal lacked merit, and the applicant had shown no willingness to provide security.

Issues

  1. Whether the applicant fulfilled the conditions necessary for the grant of an order of stay of execution pending appeal.

Orders

  • This application is dismissed.
  • Costs shall abide by the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution Pending Appeal — Conditions for Grant
An applicant for a stay of execution pending appeal must establish a likelihood of success in the appeal, that he might suffer substantial loss, that the balance of convenience favours a stay, that the application was made without unreasonable delay, and his willingness to provide security for due performance of the decree.
Civil Procedure — Stay of Execution — Substantial Loss — Burden of Proof
It is not enough for an applicant to merely assert that he will suffer substantial loss; he must adduce cogent evidence of that loss, and in the absence of such evidence the court will not stop the decree holder from enjoying the fruits of the judgment.
Civil Procedure — Stay of Execution — Money Decree — Irreparable Harm
Where the decree is for the recovery of money and the decree holder is able to refund the sum should the appeal succeed, there is no irreparable harm, because irreparable harm is harm that cannot be compensated by an award of damages.
Civil Procedure — Stay of Execution — Likelihood of Success — Summary Procedure
Where an appeal arises from summary procedure for recovery of a liquidated sum and the applicant will not avail the appellate court with any further evidence beyond bare denials and allegations of fraud already before the trial court, this casts doubt on the likelihood of success of the appeal.
Civil Procedure — Stay of Execution — Security for Due Performance
An applicant's reluctance in his pleadings and submissions to furnish security for due performance of the decree weighs against the grant of a stay of execution pending appeal.

Legislation cited (7)

Cases cited (17)

  • Katsisi David & Others v Sam Katabazi & Ors (Civil Application No. 121 of 2023)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
  • Theodore Ssekikubo & Others v Attorney General & Another (Constitutional Application No. 06 of 2013)
  • Dr. Ahmed Muhammed Kisuule v Greenland Bank (in Liquidation) (Civil Application No. 7 of 2010)
  • Gashumba Maniraguha v Sam Nkudiye (Civil Application No. 24 of 2015)
  • China Henan International Cooperation Company Ltd v Justus Kyabahwa (Civil Application No. 100 of 2021)
  • American Cyanamid Co v Ethicon Ltd [1975] AC 396
  • China Communication Construction Company Limited v Justus Kyahabwa (Miscellaneous Application No. 629 of 2019)
  • Gemstar Importers & Another v Edward Nthiwa Mutiso & Another (Civil Appeal No. 101 of 2018)
  • Uganda Revenue Authority v Tembo Steels Limited (HCMA No. 521 of 2007)
  • Kenya Shell Limited v Kibiru [1986] KLR 410
  • Stanbic Bank Uganda Limited v Atabya Agencies (SCCA No. 31 of 2004)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Civil Appeal No. 341 of 2013)
  • Sserubiri Frank & 2 Others v Salama Jaques & 2 Others (Civil Application No. 185 of 2023)
  • Absalom Dova v Tarbo Transporters [2012] eKLR
  • RRW v EKS [2019] eKLR
  • Aya Investment (U) Limited v Industrial Development Corporation of South Africa Ltd (Civil Application No. 410 of 2023)

Full judgment

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

Hon. Hajji Mohammed Kato Katoto v Justus Kyabahwa (Civil Application No. 1168 of 2023) [2023] UGCA 408 (7 December 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.