Wakilii

Kalema v Namutanyi (Miscellaneous Application 2493 of 2024)

High Court · [2024] UGHCLD 279 · 2024 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal to Court of Appeal from High Court judgment in Civil Suit No. 103 of 2007
Decision
Stay of execution granted conditionally on deposit of security

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an application for stay of execution pending appeal requires proof of six conditions established by statute and case law. The applicant must prove substantial loss, absence of unreasonable delay, and imminent threat of execution. The court must assess whether the appeal is arguable and balance hardship. Where execution is by way of arrest and detention affecting personal liberty, substantial loss is established. The court may conditionally grant stay of execution by requiring security for due performance to protect the successful party's rights while preserving the appellant's right of appeal.

Outcome

Stay of execution granted conditionally on deposit of security

Facts

The applicant was the unsuccessful party in High Court Civil Suit No. 103 of 2007, decided on 14 April 2023. The court awarded the respondent UGX 100,000,000 as general damages and ordered transfer of the suit land title into the respondent's names. The applicant filed a notice of appeal on the same day and subsequently lodged Civil Appeal No. 772 of 2023 before the Court of Appeal. The memorandum of appeal was filed on 27 August 2024. The respondent applied for execution by way of arrest and detention of the applicant. On 3 September 2024, the Registrar issued a Notice to Show Cause why Execution should not issue, returnable on 24 September 2024. On 20 September 2024, the applicant filed this application seeking stay of execution pending appeal.

Issues

  1. Whether substantial loss may result to the applicant unless stay of execution is granted.
  2. Whether the application for stay of execution was made without unreasonable delay.
  3. Whether the applicant has given security for due performance of the decree.
  4. Whether there is serious or imminent threat of execution of the decree.
  5. Whether the appeal is frivolous or has a likelihood of success.
  6. Whether refusal to grant stay of execution would inflict more hardship than it would avoid.

Orders

  • Application conditionally allowed.
  • Stay of execution of the judgment and decree in HCCS No. 103 of 2007 granted pending the hearing and determination of Court of Appeal Civil Appeal No. 772 of 2023.
  • Applicant shall deposit UGX 80,000,000 into the security account of the court being security for due performance of the decree within 60 days from the date of this order.
  • In case of default on the security condition, the order of stay of execution shall lapse and execution shall issue accordingly.
  • Costs of this application to abide the outcome of the appeal.

Rules and key headnotes

Stay of Execution — Conditions — Substantial Loss
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. Where execution is to be by way of arrest and detention, which would affect the personal liberty of the applicant before determination of the appeal, the condition of substantial loss is proved.
Stay of Execution — Conditions — Reasonable Time
Whether an application for stay of execution has been made without unreasonable delay must be determined in accordance with the circumstances of each case. Filing an application for stay of execution seventeen days after the issuance of a Notice to Show Cause why Execution should not issue constitutes reasonable time.
Stay of Execution — Security for Due Performance
In granting an order of stay of execution pending appeal, the court has to balance the need to uphold the respondent's right to be protected from the risk that the appellant may not be able to satisfy the decree, with the appellant's right to access the courts. The court may conditionally grant stay of execution by ordering the applicant to deposit a specified sum as security for due performance of the decree.
Stay of Execution — Non-Frivolous Appeal
An appeal is considered frivolous if the prospects of success are too remote. In determining whether an appeal is frivolous, the court considers whether there are arguable legal principles on appeal and whether the grounds of appeal are premised on law and facts. It is not the duty of the court whose decree is appealed from to determine the merits of the appeal.
Stay of Execution — Balancing of Hardship
The court has the duty to balance the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of judgment. It would be wrong to order a stay of execution where the appeal is frivolous or where such order would inflict greater 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] 2 All ER 448

Full judgment

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

Kalema_v_Namutanyi_(Miscellaneous_Application_2493_of_2024)_[2024]_UGHCLD_279_(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.