Wakilii

Kanyankore & Another v Equity Bank (U) Limited & 2 Others (Miscellaneous Application 2536 of 2023)

High Court · [2024] UGCOMMC 360 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal from judgment in consolidated civil suits
Decision
Application for stay of execution dismissed with costs to the respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for stay of execution pending appeal dismissed. The court held that while a notice of appeal had been filed without unreasonable delay, the applicants failed to demonstrate an imminent threat of execution, substantial loss, or provide security for due performance of the decree. No steps for execution had been taken by the respondents. The monetary award was capable of compensation through restitution or damages, and the applicants' assertion of substantial loss was speculative and unsubstantiated.

Outcome

Application for stay of execution dismissed with costs to the respondents

Facts

The applicants filed consolidated civil suits (0950 of 2017 and 0341 of 2018) against the respondents concerning allegations of breach of fiduciary duty, undervaluation and fraudulent misrepresentation of property, and illegal mortgage transactions. On 10 October 2023, the court gave judgment in favour of the respondents, finding the 2nd applicant indebted to the 1st respondent in the sum of USD 1,074,015. The applicants filed a notice of appeal on 16 October 2023. They then brought this application for stay of execution pending the hearing of their appeal to the Court of Appeal, claiming that execution of the decree would cause them substantial loss and that the 2nd applicant was no longer operational while the 1st applicant had guaranteed the loan. The respondents opposed the application, contending no execution steps had been taken, they were in possession of the suit properties as registered owners, and the applicants' claims of loss were speculative.

Issues

  1. Whether there is a notice of appeal.
  2. Whether the appeal is not frivolous and has a likelihood of success.
  3. Whether the application has been made without unreasonable delay.
  4. Whether there is a serious or imminent threat of execution of the decree.
  5. Whether substantial loss may result to the applicant unless the stay of execution is granted.
  6. Whether security has been given by the applicant for the due performance of the decree or order.
  7. Whether refusal to grant the stay would inflict greater hardship than it would avoid.

Orders

  • Application dismissed.
  • Costs to the respondents.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant — Order 43 Rule 4(3) CPR
An order for stay of execution pending appeal will not be granted unless the court is satisfied that substantial loss may result to the applicant, that the application has been made without unreasonable delay, and that security has been given by the applicant for due performance of the decree or order as may ultimately be binding upon him or her. All three conditions must be fulfilled before execution can be stayed.
Civil Procedure — Stay of Execution — Imminent Threat of Execution — Evidence Required
An order of stay will issue only if there is actual or presently threatened execution. There must be unequivocal evidence showing that unconditional steps conveying a gravity of purpose and imminent prospect of execution have been taken by the respondent, such as extracting the decree, taxing a bill of costs, applying for issuance of a warrant of execution, or issuing a notice to show cause. The general rule is that courts should not order a stay where there is no evidence of any application for execution of the decree.
Civil Procedure — Stay of Execution — Substantial Loss — Money Decrees
Execution of a money decree is ordinarily not stayed since satisfaction of a money decree does not amount to substantial loss or irreparable injury to the applicant where the respondent is not impecunious, as the remedy of restitution is available to the applicant in the event the appeal is allowed. The loss ought to be of a nature which cannot be undone once inflicted. It is not enough to merely repeat the words of the code and state that substantial loss will result; the kind of loss must be specified, details must be given, and it must be shown that such loss will really ensue.
Civil Procedure — Stay of Execution — Security for Due Performance
Security for due performance has been interpreted to mean the entire decretal sum and is intended to protect the judgment creditor in the event that the appeal is unsuccessful. The applicant must demonstrate how much money they will deposit as security for due performance of the decree.

Legislation cited (9)

Cases cited (11)

  • Lawrence Musiiwa v Itobu Margret (HCMA No. 0160 of 2022)
  • Ntege Mayambala v Christopher Mwanje (HCMA No. 72 of 1991)
  • Theodore Ssekikubo & Others v Attorney General & Others (Constitutional Application No. 03 of 2014)
  • Kyambogo University v Prof. Isiah Omolo Ndiege (Court of Appeal Civil Appeal No. 341 of 2013)
  • Orient Bank Ltd v Zaabwe & Others (HCMA No. 19 of 2006)
  • Baguma Paul T/A Panache Associates v Eng. Karuma Kagyina (HCMA No. 460 of 2020)
  • Formula Feeds Ltd v KCB Bank Ltd (HCMA No. 1647 of 2022)
  • Tanzania Cotton Marketing Board v Coqecot Cotton Co. SA (1995-1998) 1 EA 312
  • Bansidhav v Pribku Dayal AIR 41 1954
  • Miscellaneous Application No 105 of 2020
  • Shem Mpanga Mukasa & Another v Kizza Clessy Barya (Miscellaneous Application No. 479 of 2021)

Full judgment

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

Kanyankore & Another v Equity Bank (U) Limited & 2 Others (Miscellaneous Application 2536 of 2023) [2024] UGCommC 360 (24 September 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.