Kasenge Joseph v Jackson Kintu Kabanda (Civil Application 693 of 2024)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

A single Justice of the Court of Appeal dismissed an application for stay of execution pending appeal. The respondent's preliminary objection under Rule 42 of the Court of Appeal Rules succeeded: an application that may be made in either court must first be made in the High Court, and may be entertained by the Court of Appeal at first instance only in exceptional circumstances. The applicant had already obtained a conditional stay from the High Court and, being dissatisfied with its terms, filed a fresh application instead of complying. The Court held this was an abuse of process — a disguised appeal against the High Court's conditions intended to deny the respondent the fruits of his judgment — and dismissed it, each party bearing its own costs.

Outcome

Application for stay of execution dismissed and preliminary objection upheld; each party to bear own costs

Facts

The respondent obtained judgment against the applicant in HCCS No. 3121 of 2016 concerning land at Busiro Block 383 Plot 288, in which the respondent claimed a kibanja interest. The judgment granted a permanent injunction, demolition orders, and special and general damages of over UGX 26,880,000 with interest and costs. The applicant, dissatisfied, lodged an appeal and applied to the High Court for a stay of execution in Misc. Application No. 2014 of 2024. On 6 November 2024 Tadeo Asiimwe J granted a conditional stay, requiring the applicant to deposit 50% of the decretal sum (UGX 48,861,682) as security for due performance within two weeks, plus a certificate of title for land at Kyadondo Block 244 Plot 6043. Aggrieved by these conditions, the applicant filed Misc. Application No. 3054 of 2024 seeking leave to appeal and a further stay, which remained pending in the High Court. Without prosecuting that matter, the applicant filed the present fresh application for stay in the Court of Appeal.

Issues

1. Whether an application for stay of execution filed in the Court of Appeal at first instance offends Rule 42 of the Court of Appeal Rules, which requires such an application to be made first in the High Court.
2. Whether the application amounted to an abuse of the court process where the applicant had already obtained a conditional stay in the High Court.

Orders

• The preliminary objection by counsel for the respondent is allowed.
• Civil Application No. 693 of 2024 is dismissed.
• Each party shall bear their own costs for the application.

Rules and key headnotes

Legislation cited (6)

• Judicature Act s.12
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.6(2)(b)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.43
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.42
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.76
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.2(2)

Cases cited (3)

• Hon Theodore Ssekikubo and 4 Others v Attorney General and 4 Others (Constitutional Application No. 4 of 2014)
• Tropical Commodities Suppliers Ltd and Others v International Credit Bank Ltd (in Liquidation) (2004) 2 EA 331
• Mbogo and Another v Shah [1968] EA 93

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