Wakilii

Kasinzi alias Gatsinzi v Kisiki (159 of 2023; Civil Appeal 70 of 2023)

Court of Appeal · [2023] UGCA 167 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for an interim order to stay execution pending hearing of the substantive application for stay of execution before the Court of Appeal
Decision
Interim order to stay execution granted pending determination of the main application for stay of execution (CA Civil Application No. 158 of 2023)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The single Justice held that, although the order dismissing the application to vary the stay conditions (HCMA No. 2067 of 2022) was not independently appealable without leave, a valid notice of appeal existed in respect of the main judgment in HCCS No. 156 of 2014, which was the subject of those orders. A substantive application for stay was pending and the photographs adduced established an imminent threat of execution. Invoking the court's inherent power under rule 2(2) and Article 126(2)(e), the court granted an interim order to stay execution pending determination of the main application for stay, with costs in the cause.

Outcome

Interim order to stay execution granted pending determination of the main application for stay of execution (CA Civil Application No. 158 of 2023)

Facts

The applicant was the defendant in High Court Civil Suit No. 156 of 2014, which was decided in favour of the respondents concerning land found to belong to the estate of the late Mitina Nakanwagi. Dissatisfied, the applicant filed a notice of appeal and sought a stay of execution. The High Court granted a stay on condition that he deposit UGX 20,000,000 within 30 days as security for performance of the decree. His application to vary that condition (reducing the amount and extending time) was dismissed in HCMA No. 2067 of 2022. The applicant did not deposit the money, and the stay order lapsed. He alleged the respondents had ferried livestock and people onto the disputed land, sought cancellation of his certificate of title, and were changing the status quo, supported by dated photographs. He sought an interim order to stay execution pending his substantive stay application before the Court of Appeal.

Issues

  1. Whether there was a valid notice of appeal to support the application for an interim order to stay execution.
  2. Whether there was a substantive application for stay of execution pending before the court.
  3. Whether there was a serious threat of execution before the hearing of the substantive application.
  4. Whether the applicant could appeal against the order dismissing the application to vary the conditions for stay of execution without leave.

Orders

  • Interim order for stay of execution granted until the hearing and final determination of Court of Appeal Civil Application No. 158 of 2023.
  • Costs of this application shall be in the cause.

Rules and key headnotes

Stay of Execution — Interim Orders — Criteria for Grant
An interim order to stay execution is granted where there is a competent notice of appeal, a pending substantive application for stay of execution, and a serious threat of execution before the substantive application is heard.
Appeals — Order Dismissing Application to Vary Stay — Requirement of Leave
An order dismissing an application to vary an order for stay of execution made under Order 43 rule 3, section 33 of the Judicature Act and section 98 of the Civil Procedure Act is not appealable under Order 44 rule 1 of the Civil Procedure Rules or section 76 of the Civil Procedure Act, and an appeal against it requires leave; however, it may be challenged within the main appeal without leave of the lower court.
Stay of Execution — Lapse of Conditional Stay Order
A conditional stay of execution requiring deposit of security within a fixed period lapses upon the applicant's failure to deposit within that period, particularly where efforts to vary the condition have been dismissed, leaving no subsisting order to stay execution.
Inherent Powers — Rule 2(2) — Preventing Appeal Being Rendered Nugatory
The Court of Appeal may invoke its inherent power under rule 2(2) of its Rules to grant an interim stay of execution where the justice of the case requires that the main application for stay be heard before execution, lest the main application and appeal be rendered nugatory.
Stay of Execution — Threat of Execution — Evidence
Unchallenged photographic evidence depicting occupation of disputed land by livestock and persons, coupled with an application to cancel the applicant's certificate of title, may establish an imminent threat of execution on a balance of probabilities.

Legislation cited (9)

Cases cited (2)

  • Hwan Sung Industries Ltd v Tadjin Hussein and 2 Others (Supreme Court Civil Application No. 19 of 2008)
  • Theodore Ssekikubo and 3 Others v Attorney General and 4 Others (Constitutional Court Application No. 4 of 2014)

Full judgment

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

Kasinzi alias Gatsinzi v Kisiki (159 of 2023; Civil Appeal 70 of 2023) [2023] UGCA 167 (2 June 2023)
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.