Wakilii

Kalema v Namutanyi (Miscellaneous Application 2493 of 2024)

High Court · [2024] UGHCLD 265 · 2024 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of judgment pending appeal to Court of Appeal
Decision
Stay of execution granted on condition of depositing UGX 80,000,000 security within 60 days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted conditional stay of execution pending appeal after finding the applicant satisfied the conditions under Order 43 rule 4 of the Civil Procedure Rules, including proof of substantial loss (threat of arrest and detention), reasonable time in filing, and arguable grounds of appeal. The court balanced the parties' interests by ordering the applicant to deposit UGX 80,000,000 as security for due performance of the decree within 60 days, failing which the stay would lapse and execution would proceed.

Outcome

Stay of execution granted on condition of depositing UGX 80,000,000 security within 60 days

Facts

The applicant was the unsuccessful party in HCCS No. 103 of 2007, where the respondent was awarded UGX 100,000,000 as general damages and title to suit land. The applicant filed a notice of appeal on 14 April 2023 immediately after judgment was delivered, and later filed a memorandum of appeal on 27 August 2024. The respondent applied for execution by way of arrest and detention. On 3 September 2024, the Registrar issued a Notice to Show Cause why Execution should not issue, returnable 24 September 2024. On 20 September 2024, the applicant filed this application for stay of execution pending the determination of Civil Appeal No. 772 of 2023. The respondent opposed the application, arguing it was intended to delay her from enjoying the fruits of her judgment.

Issues

  1. Whether the applicant satisfied the conditions for grant of stay of execution pending appeal.
  2. Whether the applicant would suffer substantial loss if stay of execution was not granted.
  3. Whether the application was made without unreasonable delay.
  4. Whether security for due performance of the decree should be ordered.
  5. Whether there was imminent threat of execution rendering the appeal nugatory.
  6. Whether the appeal had a likelihood of success and was not frivolous.

Orders

  • 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.
  • The applicant shall deposit UGX 80,000,000 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 on the deposit condition, 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 — Conditions for Grant — Substantial Loss
Substantial loss for purposes of stay of execution 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. The loss ought to be of a nature which cannot be undone once inflicted. Threat of arrest and detention affecting personal liberty before determination of an appeal constitutes substantial loss.
Civil Procedure — Stay of Execution — Application Without Unreasonable Delay
An application for stay of execution filed seventeen days after issuance of a Notice to Show Cause why Execution should not issue is filed within reasonable time and satisfies the condition that the application be made without unreasonable delay. The determination of reasonable delay must be made according to the circumstances of each case.
Civil Procedure — Stay of Execution — Security for Due Performance — Not Mandatory Condition
Security for due performance of a decree is not a mandatory condition precedent to the grant of stay of execution. Courts must balance the need to uphold the respondent's right to protection from the risk that the appellant may not satisfy the decree with the appellant's right to access the courts. Courts may order deposit of security as a condition of stay rather than refusing the application entirely for failure to deposit security in advance.
Civil Procedure — Stay of Execution — Frivolous Appeal — Test for Likelihood of Success
An appeal is not considered frivolous if the grounds of appeal are based on law and fact and raise arguable legal principles. The court hearing the application for stay of execution does not determine the merits of the appeal but only considers whether the case on appeal is arguable. An appeal is frivolous if its prospects of success are too remote.
Civil Procedure — Stay of Execution — Balancing Hardship — Imminent Threat of Execution
The court must balance or weigh 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 enjoyment of the fruits of his or her judgment. It is wrong to order a stay where the appeal is frivolous or where such order would inflict greater hardship than it would avoid. Issuance of a Notice to Show Cause why Execution should not issue constitutes proof of imminent threat of execution.

Legislation cited (5)

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 (HCMA No. 1030 of 2023)
  • Rose Agutti v Rutingi Properties and Another (HCMA No. 521 of 2024)
  • Kabiito Karamagi and Another v Yanjian Uganda Company Limited and Another (HCMA No. 1274 of 2023)
  • Formula Feeds Ltd and 3 Others v KCB Bank Ltd (HCMA 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_v_Namutanyi_(Miscellaneous_Application_2493_of_2024)_[2024]_UGHCLD_265_(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.