Wakilii

Kalungi v Kivunja (Miscellaneous Application No. 22 of 2021)

High Court · [2021] UGHCCD 250 · 2021 Application Granted with Conditions AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal from judgment in civil suit
Decision
Stay of execution granted on condition of security deposit and deposit of certificate of title

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted a stay of execution pending appeal on condition that the applicant deposit a bank guarantee of UGX 100,000,000 and the certificate of title for the suit land within fourteen days. The court held that the applicant proved substantial loss arising from potential eviction, filed the application without unreasonable delay, and that security for due performance was necessary to protect the judgment creditor while the applicant remained in possession of the land.

Outcome

Stay of execution granted on condition of security deposit and deposit of certificate of title

Facts

The applicant was sued by the respondent in Civil Suit No. 51 of 2014 over land comprised in Buddu Block 520 Plots 80 & 83 in Masaka. Judgment was entered in favour of the respondent. The applicant filed a notice of appeal three days after judgment. The respondent commenced execution proceedings in December immediately after judgment. A notice to show cause why execution should not issue was issued on 4 February 2021. This application for stay was filed on 2 March 2021. The applicant remained in possession of the suit land, which he used for grazing and had pine trees worth UGX 100,000,000. The respondent argued that the applicant was using the application as a delaying tactic and sought security for due performance.

Issues

  1. Whether the applicant satisfied the conditions for a stay of execution pending appeal.
  2. Whether the applicant proved that substantial loss may result unless the order is made.
  3. Whether the application was made without unreasonable delay.
  4. Whether the applicant should be required to provide security for due performance of the decree.

Orders

  • Execution in Civil Suit No. 51 of 2014 is stayed on condition that the Applicant deposits in court a bank guarantee in the sum of UGX 100,000,000 made to the Registrar High Court of Uganda as security for due performance within fourteen days.
  • The Applicant shall deposit the Certificate of Title for the land comprised in Buddu Block 520 Plots 80 & 83 Masaka District with the Deputy Registrar at the High Court Circuit in Masaka.
  • Upon failure to meet conditions 1 and 2 within the set timelines, execution shall issue.
  • Costs of the application shall abide the results of the appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution — Substantial Loss
Substantial loss does not represent any particular amount or size; it refers to any loss, great or small, that is of real worth or value, as distinguished from a loss without value or a loss that is merely nominal. An eviction order that would result in loss of possession and inconvenience if the appeal is successful constitutes substantial loss.
Civil Procedure — Stay of Execution — Unreasonable Delay
Where a notice of appeal is filed three days after judgment, execution proceedings commence in December after judgment, and an application for stay is filed three months later after a notice to show cause is issued, such timing does not amount to undue delay on the applicant's part.
Civil Procedure — Stay of Execution — Security for Due Performance
Security for due performance is intended to protect the judgment creditor in the event that the appeal is unsuccessful. Courts have discretion to grant a stay without security for due performance, but where the applicant is in possession of the suit property and continues to benefit from it while the judgment creditor is prevented from enjoying the fruits of judgment, the court may require security for due performance to protect the judgment creditor.
Civil Procedure — Stay of Execution — Security for Costs Distinguished from Security for Decretal Sum
Courts have been reluctant to order security for the entire decretal amount and have been keen to order security for costs instead, as the requirement that mandates security for the entire decretal amount is likely to stifle appeals.

Legislation cited (6)

Cases cited (9)

  • Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Appeal No. 18 of 1990)
  • John Baptist Kawaga v Namyalo Kevina & Semakula Laurence (Miscellaneous Application No. 12 of 2017)
  • Mohan Musisi Kiwanuka v Aisha Chand (Supreme Court Civil Appeal No. 14 of 2003)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Miscellaneous Civil Application No. 341 of 2013)
  • Tropical Commodities Suppliers Ltd and others v International Credit Bank Ltd (In Liquidation) [2004] 2 EA 331
  • John Baptist Kawanga v Namyalo (Miscellaneous Application No. 12 of 2017)
  • Margarette Kato v Nalwo (Miscellaneous Application No. 11 of 2011)
  • DFCU Bank Ltd v Dr. Ann Persis Nakate Lussejere (Court of Appeal Civil Appeal No. 29 of 2003)
  • DFCU Bank Ltd v Dr. Ann Persis Nakate (Court of Appeal Civil Appeal No. 29 of 2003)

Full judgment

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

Kalungi v Kivunja (Miscellaneous Application No. 22 of 2021) [2021] UGHCCD 250 (5 October 2021)
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.