Wakilii

John Tuggy Daniel v Wapisi & 2 Ors (Miscellaneous Application No. 185 of 2017)

High Court · [2017] UGHCEBD 12 · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of distress and eviction warrants pending appeal from dismissal of application to set aside distress proceedings
Decision
Stay of execution granted; sale of attached property stayed and warrant of arrest cancelled pending appeal

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, halting the sale of the applicant's attached property and cancelling a warrant of arrest pending determination of the appeal. The court held that a notice of appeal is sufficient expression of intention to appeal and can found the basis for a stay. Where an appeal raises material illegalities and lack of jurisdiction, and failure to grant stay would render the appeal nugatory and cause substantial loss, stay is appropriate. The applicant's attached property held by respondents constituted sufficient security for due performance.

Outcome

Stay of execution granted; sale of attached property stayed and warrant of arrest cancelled pending appeal

Facts

The applicant was a tenant of premises at Block 244, Plot 2014, Kisugu, Muyenga, Makindye Division, Kampala. The third respondent was his landlady. The first respondent, administrator of the estate of the late Wapenyi and registered proprietor, disputed the third respondent's status and claimed she was merely a caretaker. On 31 March 2017, certificates to levy distress for rent and for eviction were issued to the second respondent. The applicant was evicted on 18 April 2017 and his household property attached. The applicant and third respondent filed MA 178/17 to set aside the distress proceedings but it was dismissed on 3 July 2017. The applicant's property was advertised for sale and a warrant of arrest obtained for costs. A dispute between the first and third respondents over the property was pending in the Family Division as Civil Suit 26/17. The applicant filed this application on 21 July 2017 seeking stay pending appeal.

Issues

  1. Whether execution should be stayed pending appeal.
  2. Whether the court should direct that all losses, costs and liabilities arising out of MA 112/17 should be borne by the Third Respondent.

Orders

  • The sale of the attached property of the Applicant is stayed pending the determination of the appeal.
  • The warrant of arrest for the Applicant is hereby cancelled.
  • The attached property of the Applicant will suffice as security for due performance of the decree and a list thereof should be availed to this court by 07.08.17.
  • Costs of the application will abide outcome of the appeal.

Rules and key headnotes

Stay of Execution — Notice of Appeal as Sufficient Basis
A notice of appeal is a sufficient expression of an intention to file an appeal and such action is sufficient to found the basis for grant of orders of stay in appropriate cases.
Stay of Execution — Guiding Principles
In determining whether to grant stay of execution, the court considers: likelihood of success of the appeal; likelihood of suffering substantial loss or irreparable damage; whether the application was made without unreasonable delay; whether security for costs has been given; and the balance of convenience. The guiding principles depend on the individual circumstances and merit of each case.
Stay of Execution — Nugatory Appeal and Substantial Loss
Where an appeal raises issues of material illegalities and lack of jurisdiction, and failure to grant stay would render both the appeal and related pending suit nugatory and result in disposal of the applicant's property without opportunity to prove lawful occupation, substantial loss would result and stay should be granted.
Stay of Execution — Security for Due Performance
Where respondents already hold the applicant's attached property and have not indicated they are releasing it, that property constitutes sufficient security for due performance and no additional security need be deposited by the applicant pending final determination of all issues.

Legislation cited (6)

Cases cited (6)

  • Makerere University v S Education Institutes Ltd & Others (HCCS No. 378 of 1993)
  • Gaga Enterprise Ltd & Another v Mpindi (Miscellaneous Application No. 02 of 2014)
  • Uganda Revenue Authority vs. & Another MA 783/07
  • David Wesley v Attorney General (Constitutional Application No. 61 of 2014)
  • East African Development Bank v Blueline Enterprise Ltd [2006] 2 EA 5
  • Attorney General vs. East African Law Society & Another EAC J Appl. No.

Full judgment

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

John Tuggy Daniel v Wapisi & 2 Ors (Miscellaneous Application No. 185 of 2017) [2017] UGHCEBD 12 (4 August 2017)
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.