Wakilii

Kalema Francis v Namutanyi Rehema (Miscellaneous Application No. 2493 of 2024)

High Court · [2024] UGHCLD 342 · 2024 Application Partly Allowed (Conditional) AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of judgment in Civil Suit No. 103 of 2007 pending determination of appeal in Court of Appeal Civil Appeal No. 772 of 2023
Decision
Stay of execution granted conditionally on deposit of UGX 80,000,000 as security within 60 days; execution to issue upon default

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court granted conditional stay of execution pending appeal where the applicant established substantial loss through threatened arrest and detention affecting personal liberty, applied without unreasonable delay, and the appeal was arguable on law and fact. Security for due performance of UGX 80,000,000 was ordered within 60 days, failing which execution would issue.

Outcome

Stay of execution granted conditionally on deposit of UGX 80,000,000 as security within 60 days; execution to issue upon default

Facts

The applicant was the unsuccessful party in Civil Suit No. 103 of 2007 and filed a notice of appeal immediately after judgment on 14 April 2023. The respondent applied for execution of the decree by way of arrest and detention. The registrar issued a Notice to Show Cause why Execution should not issue on 3 September 2024, returnable on 24 September 2024. The applicant filed the present application for stay of execution on 20 September 2024, seventeen days after the Notice to Show Cause was issued. The decree in the main suit included an award of UGX 100,000,000 as general damages and an order for transfer of title of the suit land back to the respondent.

Issues

  1. Whether the applicant satisfied the conditions for grant of stay of execution pending appeal under Order 43 rule 4(3) of the Civil Procedure Rules.
  2. Whether substantial loss would result to the applicant if stay of execution was not granted.
  3. Whether the application was made without unreasonable delay.
  4. Whether the applicant gave adequate security for due performance of the decree.
  5. Whether refusal to grant stay would inflict more hardship than it would avoid.

Orders

  • Stay of execution of the judgment and decree in High Court Civil Suit No. 103 of 2007 granted pending the hearing and determination of Court of Appeal Civil Appeal No. 772 of 2023.
  • The applicant shall deposit a sum of UGX 80,000,000 (Uganda Shillings eighty million) into the security account of the court as security for due performance of the decree within 60 days from the date of this order.
  • In case of default by the applicant on the condition above, the order of stay of execution shall lapse and execution shall issue accordingly.
  • The costs of this application shall abide the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution — Substantial Loss — Personal Liberty
Where execution is sought by way of arrest and detention in civil prison, the threatened deprivation of personal liberty before determination of an appeal constitutes substantial loss that cannot be undone or compensated by damages, satisfying the requirement under Order 43 rule 4(3)(a) of the Civil Procedure Rules.
Civil Procedure — Stay of Execution — Substantial Loss — Nature and Test
Substantial loss does not represent any particular size or amount but refers to any loss, great or small, that is of real worth or value as distinguished from a loss that is merely nominal. It must be of a nature which cannot be undone once inflicted and must irreparably affect or negate the very essential core of the applicant as a potential successful party in the appeal.
Civil Procedure — Stay of Execution — Unreasonable Delay — Calculation
An application for stay of execution filed seventeen days after issuance of a Notice to Show Cause why Execution should not issue, where the notice of appeal was filed immediately after judgment, does not constitute unreasonable delay.
Civil Procedure — Stay of Execution — Security for Due Performance — Money Decree
In the case of a money decree, furnishing security for due performance of the decree denotes depositing the disputed amount. The court must balance the need to uphold the respondent's right to be protected from the risk that the appellant may not satisfy the decree, with the appellant's right to access the courts.
Civil Procedure — Stay of Execution — Non-Frivolous Appeal — Test
An appeal is not frivolous if it raises arguable legal principles based on law and fact. The court hearing the stay application does not determine the merits of the appeal but only considers whether the grounds of appeal are premised on law and facts, and whether the prospects of success are not too remote.
Civil Procedure — Stay of Execution — Conditions — Cumulative Requirements
The conditions for grant of stay of execution pending appeal include: (a) proof that substantial loss may result unless stay is granted; (b) the application is made without unreasonable delay; (c) security is given for due performance of the decree; (d) there is serious or imminent threat of execution; (e) the appeal is not frivolous and has likelihood of success; and (f) refusal to grant stay would inflict more hardship than it would avoid.

Legislation cited (8)

Cases cited (7)

  • Tropical Commodities Supplies Ltd and Others v International Credit Bank Ltd (in Liquidation) [2004] 2 EA 331
  • Makerere University and Another v Ndagire Joyce and 2 Others (Miscellaneous Application No. 1030 of 2023)
  • Rose Agutti v Rutingi Properties and Another (Miscellaneous Application No. 521 of 2024)
  • Kabiito Karamagi and Another v Yanjian Uganda Company Limited and Another (Miscellaneous Application No. 1274 of 2023)
  • Formula Feeds Ltd and 3 Others v KCB Bank Ltd (Miscellaneous Application No. 1647 of 2022)
  • Kyambogo University v Prof Isaiah Omolo Ndiege (Court of Appeal Miscellaneous Civil Application No. 341 of 2013)
  • Erinford Properties Ltd v Cheshire County Council [1974] 412 All ER 448

Full judgment

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

Kalema_Francis_v_Namutanyi_Rehema_(Miscellaneous_Application_No._2493_of_2024)_[2024]_UGHCLD_342_(13_November_2024)
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.