Wakilii

Kagoro v Samalien Properties Limited and 4 Others (Miscellaneous Application 942 of 2022)

High Court · [2022] UGHCLD 260 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of costs order pending determination of application for reinstatement
Decision
Application for stay of execution dismissed with costs to the respondents

Observed later treatment

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Holding

An application for stay of execution must satisfy the conditions in Order 43 rule 4(3) CPR including proof of substantial loss. The court held that the applicant failed to prove substantial loss would result, as costs are recoverable and the applicant had legal representation to pursue pending applications. Application dismissed.

Outcome

Application for stay of execution dismissed with costs to the respondents

Facts

The applicant was a judgment creditor awarded costs of UGX 89,962,014 in Miscellaneous Application 578 of 2018 and Civil Suit 628 of 2018. The 2nd respondent was awarded costs of the same amount. The applicant filed an application for review (HCMA 740 of 2021) which was dismissed for non-appearance of counsel. The applicant then filed HCMA 943 of 2022 for reinstatement of HCMA 740, and simultaneously this application (HCMA 942 of 2022) seeking stay of execution of the costs order pending determination of the reinstatement application. The applicant claimed the respondents had fraudulently transferred property to frustrate execution of his decree against Samalien Properties Ltd amounting to UGX 1,173,328,737. The applicant argued that if arrested for non-payment of costs, he would be unable to pursue his other applications.

Issues

  1. Whether the applicant satisfied the conditions for a stay of execution under Order 43 rule 4(3) of the Civil Procedure Rules.
  2. Whether the applicant demonstrated that substantial loss would result if execution was not stayed.

Orders

  • Application dismissed.
  • Costs awarded against the applicant.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant
A party seeking stay of execution must satisfy the conditions in Order 43 rule 4(3) of the Civil Procedure Rules, namely: (a) that substantial loss may result to the applicant unless the order of stay is made; (b) that the application has been made without unreasonable delay; and (c) that security for due performance of the decree has been given by the applicant.
Civil Procedure — Stay of Execution — Substantial Loss — Standard of Proof
An applicant for stay of execution must go beyond vague and general assertions of substantial loss and lay a proper basis upon which the court can make a finding that substantial loss will actually result. The applicant must state the kind of loss and satisfy the court's conscience that such loss will really ensue.
Civil Procedure — Stay of Execution — Substantial Loss — Meaning
The term 'substantial loss' in the context of stay of execution cannot mean the ordinary loss to which every judgment debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. Substantial loss must mean something in addition to and different from that.
Damages & Quantum — Costs — Recoverability
Costs of whatever amount are recoverable as damages. The fact that an applicant may be jailed for non-payment of costs does not constitute irreparable or substantial loss sufficient to warrant a stay of execution where the applicant has legal representation pursuing other pending applications.

Legislation cited (5)

Cases cited (10)

  • AG v Hon. Theodore Ssekikubo & Others (Constitutional Petition No. 141 of 2015)
  • Professor Asiiah Omolo Ndyege v Kyambogo University (Civil Appeal No. 341 of 2013)
  • Wilson v Church (1879) 12 Ch D 454
  • Sounu Cosmetics Ltd v The Commissioner Customs IIRA & Another (Miscellaneous Application No. 424 of 2011)
  • Afaro v Uganda Breweries Ltd (SCCA No. 11 of 2008)
  • Iterura v Joy Muguta [2007] HCB Vol. 1 42
  • National Pharmacy Ltd v Kampala City Council (1979) HCB 132
  • Uganda Revenue Authority v Tembo Steels Ltd (HCT Miscellaneous Application No. 521 of 2001)
  • Pan African Insurance Company (U) Ltd v International Air Transport Association (High Court Miscellaneous Application No. 86 of 2006)
  • Banshidar v Pribku Dayal AIR 41 1954

Full judgment

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

Kagoro_v_Samalien_Properties_Limited_and_4_Others_(Miscellaneous_Application_942_of_2022)_[2022]_UGHCLD_260_(24_October_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.