Wakilii

Kasule and Another v Mboowa and 4 Others (Miscellaneous Application 1180 of 2023)

High Court · [2023] UGHCFD 113 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interim stay of execution of judgment and decree in Civil Suit No. 58 of 2015 pending hearing and determination of Miscellaneous Application No. 250 of 2023
Decision
Interim stay of execution granted pending determination of the substantive application for stay

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court granted an interim stay of execution. To obtain an interim stay, the applicant must satisfy three conditions: a competent notice of appeal, a substantive application for stay, and a serious threat of execution. All three conditions were satisfied. The respondents had filed a bill of costs for taxation and extracted a decree, indicating imminent execution. The cutting down of banana plantations on disputed land demonstrated a threat to interfere with property subject to appeal, which would render the substantive application nugatory.

Outcome

Interim stay of execution granted pending determination of the substantive application for stay

Facts

The applicants were parties to Civil Suit No. 58 of 2015 in which judgment was delivered on 14 October 2022 in favour of the respondents, declaring property at Makindye Luwafu not to be part of the estate of the deceased Enosi Mbowa. The applicants lodged an appeal and filed a substantive application for stay of execution (Misc. Application No. 250 of 2023). Before the substantive stay application could be heard, the applicants filed the present application for an interim stay. They alleged that the respondents had brought potential buyers to inspect the suit land and had cut down banana plantations on it. The respondents had also filed a bill of costs for taxation and extracted a decree. The respondents denied any intention to execute but admitted filing the bill of costs and cutting down the banana plantations, which they claimed belonged to Jane Naluyima Mbowa and were infected.

Issues

  1. Whether the application satisfies the grounds for the grant of an interim order for stay of execution of decree in Civil Suit No. 58 of 2015 pending the determination of Miscellaneous Application No. 250 of 2023

Orders

  • An interim order of stay of execution of the decree issued in HCCS No. 58 of 2015 pending the hearing and final disposal of Misc. Application No. 250 of 2023 is granted.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Interim Stay of Execution — Three Conditions Required
To obtain an interim order staying execution of a decree pending determination of a substantive stay application, the applicant must satisfy three conditions: (i) a competent notice of appeal, (ii) a pending substantive application for stay, and (iii) a serious threat of execution before the substantive application is heard.
Civil Procedure — Stay of Execution — What Constitutes Serious Threat of Execution
The filing of a bill of costs for taxation constitutes part of the execution process and indicates a serious threat of execution. Where the successful party has extracted a decree and begun steps toward enforcement, an imminent threat exists sufficient to justify an interim stay.
Civil Procedure — Stay of Execution — Interference with Suit Property Pending Appeal
Where the successful party tampers with or interferes with suit property that is the subject of an appeal, such conduct demonstrates a threat of execution and may justify an interim stay to prevent the substantive application from being rendered nugatory.

Cases cited (6)

  • Membe v Mayoga [2009] 1 HCB
  • Senkungu and Others v Mukasa (Supreme Court Civil Application No. 5 of 2013)
  • Hwang Sung Industries Ltd v Hussein and Others (Supreme Court Civil Application No. 19 of 2008)
  • Wiltshire v Dabule (Supreme Court Civil Application No. 03 of 2018)
  • Mohamed and Another v Walia and Another (Civil Reference No. 07 of 2016)
  • Maniraguha v Nkundiye (Supreme Court Civil Application No. 24 of 2015)

Full judgment

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

Kasule and Another v Mboowa and 4 Others (Miscellaneous Application 1180 of 2023) [2023] UGHCFD 113 (17 October 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.