Wakilii

Housing Finance Bank Limited and Another v Musisi (Miscellaneous Application 158 of 2010)

Court of Appeal · [2011] UGCA 15 · 2011 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of Court of Appeal orders pending appeal to the Supreme Court
Decision
Application for stay of execution dismissed with costs

Observed later treatment

Treatment recorded in citing cases followed in 3 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 0 cases, with no adverse treatment recorded. Citations rising — 26 citing cases on record, 11 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 of Appeal dismissed an application for stay of execution pending a Supreme Court appeal. It held the applicants failed to adduce evidence of substantial or irreparable loss, and that the property had passed to a third party who was now a tenant of the respondent, making the loss of the decreed property remote. The Court further held that a party who disobeys an existing court order—here, the failure to deposit the certificate of title as ordered—comes to court with unclean hands and in contempt, and cannot have the court's equitable discretion exercised in its favour until the contempt is purged. The application was dismissed with costs.

Outcome

Application for stay of execution dismissed with costs

Facts

The respondent had mortgaged his property at Kibuga Block 28 plot 256, Makerere, Kavule to the first applicant bank as security for a loan advanced in 1995. Alleging default, the first applicant engaged the second applicant auctioneer, who sold the property to a third party. The respondent, contending he had paid all sums due, sued in the High Court (HCCS No. 27 of 2002), which dismissed his suit. On appeal, the Court of Appeal allowed the appeal in Civil Appeal No. 25 of 2004 on 26.08.2010, set aside the sale, restored the respondent's proprietary rights, ordered return of the certificate of title free of encumbrance, and awarded general damages of UGX 100,000,000 with 12% interest. The applicants appealed to the Supreme Court (Civil Appeal No. 22 of 2010) and applied for a stay of execution. In an earlier interim application (No. 159 of 2010), the Registrar had ordered the applicants to deposit the certificate of title in court within 21 days as a condition of an interim stay; the applicants did not comply. The third party purchaser had also taken occupation of the property as a tenant of the respondent.

Issues

  1. Whether the applicants established grounds for the grant of a stay of execution pending appeal to the Supreme Court.
  2. Whether the applicants, having failed to comply with an earlier court order to deposit the certificate of title, came to court with clean hands and could obtain the court's discretion.

Orders

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

Rules and key headnotes

Civil Procedure — Stay of Execution — Burden of Proving Substantial Loss
An applicant for a stay of execution bears the burden of adducing evidence that it will suffer substantial loss if the decree is executed; a bare assertion of irreparable injury in an affidavit, unsupported by evidence of how the loss will arise, is insufficient to move the court to exercise its discretion.
Civil Procedure — Stay of Execution — Risk of Appeal Being Rendered Nugatory
Where decreed property has passed to a third party who has since acknowledged the decree-holder as landlord by taking a tenancy, the possibility of the property disappearing during the pendency of the appeal is remote, and a stay is not warranted to prevent the appeal being rendered nugatory.
Civil Procedure — Contempt of Court — Disobedience of Court Order
A party who knows of a court order, whether it considers the order valid or irregular, may not choose to disobey it; the order must be complied with in full subject to the party's right to challenge it lawfully by revision, review or appeal, and unexplained non-compliance constitutes contempt of court.
Civil Procedure — Equitable Discretion — Clean Hands Doctrine
A party in contempt of court by disobeying an existing court order comes to court with unclean hands and cannot have the court's judicial discretion exercised in its favour in a related cause until it has purged itself of the contempt.

Legislation cited (2)

Cases cited (12)

  • FRANCIS MANSIO MICAH - VS - NUWA WALAKIRA [1992-93] HCB pp 88 and 89
  • Lawrence Musitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Gole Nicholas Davis v Loi Kageni Kiryapawo (Court of Appeal Election Application No. 18 of 2007)
  • Administrator General v National Social Security Fund and Others (Court of Appeal Miscellaneous Application No. 206 of 2007)
  • Stephen Byaruhanga and Others v Abubakari Kato Kasule and Another (Court of Appeal Miscellaneous Application No. 37 of 2007)
  • G. Afaro v Uganda Breweries Ltd (Supreme Court Civil Appeal No. 12 of 2008)
  • Idah Iterura v Joyce Muguta (Supreme Court Civil Appeal No. 2 of 2006)
  • CHUCK V CREMER (1 Corp Jemp 342)
  • WILDLIFE LODGES LIMITED V COUNTY COUNCIL OF NAROK AND ANOTHER: [2005] 2 EA 344 (HCK)
  • HADKINSON V HADKINSON [1952] 2 ALL ER 575
  • MAWANI V MAWANI [1974] KLR 159
  • Musisi and Another v Namugenyi Margaret (Constitutional Court Application No. 19 of 2011)

Cases citing this judgment (21)

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

↓ Download PDF

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

Housing Finance Bank Limited and Another v Musisi (Miscellaneous Application 158 of 2010) [2011] UGCA 15 (26 September 2011)
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.