Wakilii

Kansiime v Himalaya Traders Ltd & 6 Ors (Civil Appeal No. 279 of 2017)

Court of Appeal · [2017] UGCA 119 · 2017 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the Court of Appeal for stay of execution pending an intended appeal
Decision
Application for stay of execution dismissed with costs; related interim order application also dismissed

Observed later treatment

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Holding

The Court dismissed an application for stay of execution pending appeal. Because the applicant had withdrawn his stay applications in the High Court before they were determined, no application had been heard and refused as Rule 42(1) of the Court of Appeal Rules requires. The applicant failed to show the exceptional circumstances under Rule 42(2) permitting direct application to the Court of Appeal, did not demonstrate irreparable loss (developments being compensable in damages), and did not come to court with clean hands, having abused the court process. The Court also drew an adverse inference from the applicant's failure to attach the impugned judgment to his pleadings.

Outcome

Application for stay of execution dismissed with costs; related interim order application also dismissed

Facts

The 1st, 2nd, 4th, 5th and 6th respondents were registered proprietors of plots 20 to 30 on Saddler Way, Naguru. The applicant disputed their ownership in consolidated High Court suits, alleging fraud. On 14 July 2017 the High Court found the applicant to be a trespasser with no lawful interest and ordered him to vacate the land. The applicant filed a Notice of Appeal and then applied to the High Court for stay of execution and an interim order, obtaining an interim order extended to 12 September 2017. Before that hearing date, on 7 September 2017 he withdrew both High Court applications and filed the present application in the Court of Appeal, together with a separate interim order application. Interim orders were granted by the Court of Appeal. The developments on the land included a washing bay and sports centre, said to be capable of compensation in damages.

Issues

  1. Whether the application for stay of execution was competent given that the applicant had withdrawn his application for stay before the High Court determined it.
  2. Whether the applicant satisfied the conditions for the Court of Appeal to entertain a stay application directly under Rule 42 of the Court of Appeal Rules.
  3. Whether the applicant demonstrated irreparable loss and came to court with clean hands.

Orders

  • The application for stay of execution (Civil Application No. 279 of 2017) is dismissed with costs to the respondents.
  • Civil Application No. 280 of 2017 for an interim order is also dismissed for the same reasons.

Rules and key headnotes

Stay of Execution — Conditions — Pending Appeal and Prior Application to High Court
An application for stay of execution requires a pending appeal and must ordinarily first be lodged and refused in the High Court; the applicant must also show sufficient cause and that execution may cause irreparable loss, proving these conditions on a balance of probabilities.
Stay of Execution — Rule 42 Court of Appeal Rules — Direct Application to the Court of Appeal
The Court of Appeal may entertain a stay application directly only where the High Court has doubted its jurisdiction, made an apparent error of law or fact, or been unable to deal with the application in good time; where the applicant withdraws his High Court application before determination, no application has been refused and the conditions for direct application are not met.
Equitable Relief — Clean Hands — Abuse of Court Process
A litigant who withdraws applications to circumvent a scheduled hearing, disobeys court orders and seeks to maintain an illegality as the status quo does not come to court with clean hands and is not entitled to discretionary relief such as a stay of execution.
Stay of Execution — Failure to Attach Judgment — Adverse Inference
Failure to attach the impugned judgment to an application for stay of execution deprives the court of the means to assess the date of judgment and the merits of the intended appeal, and entitles the court to draw an adverse inference that the judgment did not favour the applicant's cause.

Legislation cited (8)

Cases cited (2)

  • Hwang Sung Industries Ltd v Tajdin Hussein and 2 Others (Civil Application No. 19 of 2008)
  • Lawrence Musiitwa Kyazze v Eunice Businghye (Civil Application No. 18 of 1990)

Full judgment

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

Kansiime Vs Himalaya Traders Ltd & 6 Ors (Civil Appeal No. 279 of 2017) [2017] UGCA 119 (13 December 2017)
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.