Kalanzi v Absa Bank Uganda Limited (Miscellaneous Application 1715 of 2024)
High Court
· [2025] UGCOMMC 36
· 2025
Application Granted (Conditional)
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Holding
The court held that an application for stay of execution under Order 22 Rule 26 CPR requires pendency of a suit, imminent threat of execution, and sufficient ground. A dismissal order is a negative order incapable of stay, but positive orders for payment of money and consequential rights may be stayed. Where parallel proceedings exist and the applicant contends she was not heard, security for the decreed sums mitigates prejudice to the respondent. Stay granted conditional on security equivalent to one-third of sums due.
Outcome
Stay of execution granted conditional on provision of security within thirty days
Facts
The applicant sought stay of execution of orders in HCMA No. 404 of 2024 and HCCS No. 86 of 2024 pending determination of her review application (HCMA No. 1366 of 2024). In HCMA No. 404 of 2024, the court dismissed an application and entered judgment in the main suit against three respondents including the applicant. The applicant contended she was never a party to HCMA No. 404 of 2024 (filed by other parties) and had filed her own application for leave to appear and defend out of time (HCMA No. 1111 of 2024) which was pending when judgment was entered against her. The respondent bank commenced execution proceedings by filing an execution application (EMA No. 613 of 2024). The applicant argued she was not heard and judgment was entered while her application was pending. The respondent opposed, arguing the orders were negative and incapable of stay.
Issues
- Whether the orders sought to be stayed are capable of being stayed (whether they are positive or negative orders).
- Whether there is pendency of a suit within the meaning of Order 22 Rule 26 CPR.
- Whether there is an imminent threat of execution.
- Whether the applicant has demonstrated sufficient ground for stay of execution, including likelihood of success, irreparable harm, and balance of convenience.
Orders
- Application allowed.
- Stay of execution granted in respect of orders in HCMA No. 404 of 2024 and HCCS No. 86 of 2024 only as against the applicant pending determination of HCMA No. 1366 of 2024.
- Respondent may enforce orders against other parties.
- Applicant to provide security by payment of cash or unconditional guarantee equivalent to one-third of sums due and owing.
- Security to be provided within thirty (30) days from date of ruling, failing which conditional stay shall immediately lapse.
- Costs of this application to abide outcome of HCMA No. 1366 of 2024.
Rules and key headnotes
Stay of Execution — Negative Orders — Distinction Between Negative and Positive Orders
An order dismissing an application or suit is a negative order incapable of execution and therefore incapable of stay, because it does not require parties to do anything. However, where the order contains positive elements (such as a condemnation to costs or orders for payment of money), those positive elements may be stayed.
Stay of Execution — Negative Orders — Injunction of Enforcement of Consequential Rights
The fact that an order is negative and cannot itself be stayed does not preclude the court from enjoining the enforcement of rights consequent upon the negative order where parallel proceedings or an appeal exist and where it is in the interests of justice to prevent such enforcement pending resolution of those proceedings.
Stay of Execution — Applicable Law — Order 22 Rule 26 CPR
Order 22 Rule 26 CPR is the proper provision for applications for stay of execution pending determination of parallel proceedings in the High Court. While Order 43 Rule 4 applies to appeals to the High Court, Order 22 Rule 26 is the broad provision applicable where the High Court is empowered to grant stay pending determination of suits, applications, or appeals between the same parties. The considerations under both provisions are similar.
Stay of Execution — Requirements — Pendency of Suit, Imminent Threat, Sufficient Ground
For grant of stay of execution under Order 22 Rule 26 CPR, the applicant must establish: (a) pendency of a suit by the judgment debtor against the decree holder, (b) imminent threat of execution, and (c) sufficient ground. Sufficient ground requires demonstration of likelihood of success, irreparable harm or rendering the pending suit nugatory, and balance of convenience.
Stay of Execution — Money Judgments — General Rule and Exception
Stay of execution should generally be denied where the orders sought to be executed are for payment of money because money can always be refunded, save where it can be demonstrated that there is a real reason to believe the money may not be refunded, where it is in the interests of justice to order otherwise, or where the application is for interim stay. Payment of money pursuant to a decree does not, in itself, render a pending suit or appeal nugatory because financial awards are reversible.
Stay of Execution — Security — Balancing Prejudice Through Security Requirement
Where an applicant contends there has been an affront to her right to be heard and enforcement of orders would keep the decree holder out of its money, the court may grant stay conditional on provision of security. Order 22 Rule 26 CPR requires provision of security as a precondition for stay. The quantum of security is determined in the ruling and mitigates any harm occasioned to the party kept out of the proceeds of its money.
Stay of Execution — Balance of Convenience — Policy Considerations in Commercial Litigation
The role of the Commercial Court is to ensure expeditious disposal of commercial disputes including expeditious realisation of the fruits of determination. As a general rule, preventing recovery of sums decreed as due and owing will prejudice the party entitled to payment more than the party who seeks delay. The court must balance the right to preserve parallel proceedings against the right to exercise rights conferred in a judgment, having regard to which party will suffer the most inconvenience and what mitigants are available.
Legislation cited (9)
- Judicature Act s.33
- Civil Procedure Act s.98
- Civil Procedure Rules Order 22 Rule 23(1)
- Civil Procedure Rules Order 22 Rule 89
- Civil Procedure Rules Order 22 Rule 26
- Civil Procedure Rules Order 43 Rule 4
- Civil Procedure Act s.2(x)
- Court of Appeal Rules Rule 6(2)(b)
- Court of Appeal Rules Rule 42(1)
Cases cited (35)
- Kare Distributors Ltd and Another v NCBA Bank Uganda Limited (Court of Appeal Civil Appeal No. 100 of 2023)
- Charles Ssemwanga v Nazziwa Aisha and Others (Court of Appeal Civil Appeal No. 20 of 2022)
- Exclusive Estate Limited vs. Kenya Posts and Telecommunications Corporation and Another [2005] 1 EA 53 (CA)
- Parliamentary Commission v Francis Byamugisha and Another (High Court Miscellaneous Application No. 219 of 2016)
- Raymond M. Omboga v Austine Pyan Maranga Kisii HCCA No 15 of 2010
- Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others [2021] eKLR
- Aya Investments Limited v International Development Corporation Of South Africa (High Court Miscellaneous Application No. 3063 of 2023)
- Nelson Lukozi v Meera Investments Limited and Others (High Court Miscellaneous Application No. 1970 of 2023)
- Lawrence Musitwa v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
- Tropical Commodities Supplies Ltd and Others v International Credit Bank Ltd (In Liquidation) (High Court Miscellaneous Application No. 379 of 2003)
- Transtrack Ltd v Damco Logistics (U) Ltd (High Court Miscellaneous Application No. 608 of 2012)
- DFCU Bank Ltd v Ann Persis Nakate Lussejjere (High Court Miscellaneous Application No. 78 of 2003)
- UMEME v Irene Nankabirwa (High Court Miscellaneous Application No. 154 of 2021)
- Peter Mulira v Mitchell Cotts (High Court Miscellaneous Application No. 715 of 2009)
- Rebecca Nabunya Iga v Senteza Kabali Bunya (High Court Miscellaneous Application No. 948 of 2020)
- Beeline Travel Care Limited and Another v Finance Trust Bank (High Court Miscellaneous Application No. 296 of 2023)
- Uganda Debt Network v Edward Ronald Sekyewa (High Court Miscellaneous Application No. 1657 of 2023)
- Rutagarama Bosco v Meera Investments Limited (High Court Miscellaneous Application No. 2128 of 2023)
- Sinba (K) Ltd & Ors v UBC (2015) UGSC 21
- Formula Feeds Limited and Others v KCB Bank (High Court Miscellaneous Application No. 1647 of 2022)
- Hon. Hajji Mohammed Kato v Justus Kyabahwa (High Court Miscellaneous Application No. 875 of 2023)
- Maria Odido v Barclays Bank (High Court Miscellaneous Application No. 645 of 2008)
- Children of Africa v Sarick Construction Limited (High Court Miscellaneous Application No. 134 of 2016)
- Donati Kananura v Tribet Rujugiro (High Court Miscellaneous Application No. 1782 of 2022)
- Proline Soccer Academy v Commissioner Land Registration (High Court Miscellaneous Application No. 494 of 2018)
- Mabu Commodities Limited v Sophie Nakitende and Others (High Court Miscellaneous Application No. 530 of 2020)
- UMEME Limited v Jane Nankabirwa (High Court Miscellaneous Application No. 154 of 2021)
- China Henan International Cooperation Group Company Limited v Justus Kyabahwa (Court of Appeal Civil Appeal No. 101 of 2021)
- Moses Kasozi v Muhammad Batte and Others (High Court Civil Appeal No. 24 of 2020)
- GAPCO Uganda Ltd v Kaweesa and Another (High Court Miscellaneous Application No. 259 of 2013)
- Vision Empire Ltd v Uganda Communications Commission (High Court Miscellaneous Application No. 1141 of 2020)
- Stanbic Bank Limited v Kesacon Services Limited (High Court Miscellaneous Application No. 724 of 2023)
- Ropani International Limited and Others v DFCU Bank Limited (High Court Miscellaneous Application No. 1919 of 2023)
- Luwa Luwa Investments v Uganda Revenue Authority (High Court Miscellaneous Application No. 1336 of 2022)
- Augustine Kasozi v Arvind Patel (High Court Miscellaneous Application No. 503 of 2021)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.
Kalanzi v Absa Bank Uganda Limited (Miscellaneous Application 1715 of 2024) [2025] UGCommC 36 (13 March 2025)
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