Wakilii

Kaganda v Nyamutale and Others (Miscellaneous Application No. 46 of 2021)

High Court · [2022] UGHC 72 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal to the Court of Appeal
Decision
Stay of execution granted conditional upon provision of security for costs

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 orders requiring the applicant to vacate land, pending determination of his appeal to the Court of Appeal. The court held that all four conditions for stay of execution under Order 43 rule 4(3) of the Civil Procedure Rules were satisfied: proof of lodgment of appeal, substantial loss to the applicant if evicted, no unreasonable delay in filing the application, and provision of security for costs. The stay was made conditional upon the applicant providing security for any taxed costs granted against him in the lower courts.

Outcome

Stay of execution granted conditional upon provision of security for costs

Facts

The applicant was the plaintiff in a land suit in the Chief Magistrate's Court of Fort Portal which was dismissed. He appealed to the High Court, which ruled in favour of the respondents on ownership but allowed him eight months to harvest crops and vacate the land. Judgment was delivered on 18 July 2020. The applicant lodged a notice of appeal to the Court of Appeal on 29 July 2020. On 26 April 2021, the respondents filed an application for execution by way of vacant possession. On 19 May 2021, the applicant filed this application for stay of execution pending the appeal. The applicant had been in possession of the suit land for more than 30 years.

Issues

  1. Whether the applicant's application merits grant of stay of execution.

Orders

  • The Applicant's application for stay of execution is hereby granted subject to the provision of security for costs amounting to any taxed costs granted against the Applicant in the High Court and the Chief Magistrates' Court.
  • If the above condition is met, then the execution of the orders in HCT-01-LB-CA-0048 OF 2017 will be stayed until the final determination of the appeal lodged by the Applicant in the Court of Appeal.
  • The costs of taking out this application shall abide the outcome of the appeal in the Court of Appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution — Proof of Lodgment of Appeal — Notice of Appeal as Sufficient Expression of Intention
A notice of appeal is a sufficient expression of an intention to file an appeal and such an action is sufficient to found the basis for grant of orders of stay in appropriate cases.
Civil Procedure — Stay of Execution — Substantial Loss — Eviction from Land in Possession
Substantial loss need not be determined by a mathematical formula whose computation yields any particular amount. Where an applicant is in occupation of suit land and execution would result in eviction, this constitutes substantial loss for purposes of stay of execution as it would defeat the appeal and the purposes of the appeal being to protect the applicant's interest in the suit land.
Civil Procedure — Stay of Execution — Security for Costs — Distinction from Security for Due Performance of Decree
Courts have been reluctant to order security for due performance of the decree, which has been interpreted to mean the entire decretal sum. Rather, courts have been keen to order security for costs, because the requirement and insistence on a practice that mandates security for the entire decretal amount is likely to stifle appeals. Security for costs or due performance of the decree operates as an insurance cover meant to indemnify the judgment debtor in the event the appeal fails without recourse to vigorous processes of recovering such costs.
Civil Procedure — Stay of Execution — Four Conditions under Order 43 Rule 4(3) CPR
For a stay of execution to be granted under Order 43 rule 4(3) of the Civil Procedure Rules, the applicant must satisfy four conditions: proof of lodgment of an appeal in the appellate court; that substantial loss may result to the applicant unless the order is made; that the application has been made without unreasonable delay; and that security has been given by the applicant for the due performance of the decree or order as may ultimately be binding upon him or her.

Legislation cited (6)

Cases cited (10)

  • Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
  • Dr Ahmed Muhammed Kisule v Greenland Bank (in Liquidation) (Supreme Court Civil Application No. 7 of 2010)
  • Attorney General of the Republic of Uganda v The East African Law Society and Another (EACA Application No. 1 of 2013)
  • Equity Bank Uganda Ltd v Nicholas Were (Miscellaneous Application No. 604 of 2013)
  • Tropical Commodities Suppliers Ltd and 2 Others v International Credit Bank Ltd (In Liquidation) (Miscellaneous Application No. 379 of 2003)
  • Shem Mpanga Mukasa and Another v Kizza Clessy Barya (Miscellaneous Application No. 479 of 2021)
  • Kisaalu Joseph and 10 Others v Nakintu May and Another (Miscellaneous Application No. 105 of 2020)
  • Tropical Commodities Supplies Ltd and Others v International Credit Bank Ltd (in liquidation) [2004] 2 EA 331
  • DFCU Bank Ltd v Dr Ann Persis Nakate Lussejere (Court of Appeal Civil Appeal No. 29 of 2003)
  • Amon Bazira v Maurice Pater Kagimu (Land Division Miscellaneous Application No. 1138 of 2016)

Full judgment

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Kaganda v Nyamutale and Others (Miscellaneous Application No. 46 of 2021) [2022] UGHC 72 (9 December 2022)
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.