Kato and 2 Others v Nalubega (Civil Application No. 381 of 2021)

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

The Court of Appeal dismissed an application for an interim order for stay of execution after finding the applicants failed to satisfy the conditions established in Kyambogo University v Ndiege. The court held that the appeal lacked a likelihood of success, that the applicants relied on the prospects of a pending High Court suit rather than the appeal, and that there was no genuine imminent threat of eviction from a home. The court found that applicants' counsel produced a forged court order to persuade the court, and ordered that the Law Council be informed for disciplinary action against her. The application was dismissed with costs.

Outcome

Application for interim stay of execution dismissed; applicants advised to pursue their cause in the High Court at Mukono

Facts

The applicants sought an interim order staying execution of an order issued in the High Court at Mukono in HCMC No. 20 of 2019, pending hearing of their substantive stay application and appeal in the Court of Appeal. The underlying dispute concerned land at Kyaggwe Block 101 Plot 279, Misindye, claimed by both parties. The applicants' earlier suits (HCCS No. 505 of 2018 and HCCS No. 264 of 2018) had been dismissed for failure to disclose locus standi and as time-barred; they then filed HCCS No. 200 of 2019. The respondent claimed she had used the land since 1984 and was evicted in 2016. The trial judge had found at a locus in quo visit that the applicants were not resident on the land. During the hearing, applicants' counsel produced an order allegedly staying all Mukono proceedings; the respondent's counsel and the trial judge confirmed the order was a forgery, with a forged signature and altered content.

Issues

1. Whether the applicants satisfied the conditions for the grant of an interim order for stay of execution.
2. Whether the appeal and substantive application pending in the Court of Appeal had a likelihood of success.
3. Whether there was a serious imminent threat of execution that would render the appeal nugatory if the order was refused.

Orders

• Application dismissed with costs to the respondent.
• The Deputy Registrar to send a copy of the ruling to the Secretary to the Uganda Law Council and lodge a complaint about the conduct of Ms Tumusiime with a view to disciplinary action.

Rules and key headnotes

Legislation cited (9)

• Judicature (Court of Appeal Rules) Directions S.I 13-10 rule 2(2)(b)
• Judicature (Court of Appeal Rules) Directions S.I 13-10 rule 42
• Judicature (Court of Appeal Rules) Directions S.I 13-10 rule 43
• Judicature (Court of Appeal Rules) Directions S.I 13-10 rule 76
• Civil Procedure Rules Order 6 rule 1
• Succession Act Part V
• Penal Code Act s.349
• Penal Code Act s.351
• Advocates (Professional Conduct) Regulations (S.I 267-2) rule 17(1)

Cases cited (3)

• Kyambogo University v Professor Isaiah Omolo Ndiege (Civil Application No. 34 of 2013)
• Fakrudin Vallihai Kapasi & Another v Kampala District Land Board & Another (HCCS No. 570 of 2015)
• Israel Kabwa v Martin Banoba (Supreme Court Civil Appeal No. 52 of 1995)

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