Wakilii

Katuramu and 5 Others v Kanyamu and 11 Others (Miscellaneous Application 21 of 2023)

High Court · [2024] UGHC 589 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal arising from Civil Suit No. 0001 of 2021, which itself arose from Administration Cause No. MH5 of 1982
Decision
Stay of execution granted pending determination of the appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the applicants satisfied the requirements for a stay of execution pending appeal under Order 43 Rule 4(3) of the Civil Procedure Rules. The court found that substantial loss would result if the suit property were disposed of during the appeal, the application was made without unreasonable delay, and in a liberal approach consistent with constitutional directives to avoid technicalities, dispensed with the requirement for security for due performance to avoid stifling appeals with substantial issues.

Outcome

Stay of execution granted pending determination of the appeal

Facts

The applicants were parties in Civil Suit No. 0001 of 2021, arising from Administration Cause No. MH5 of 1982 in the Masindi Chief Magistrate's Court. Following judgment on 30 March 2023, the applicants filed this application on 19 April 2023 seeking a stay of execution pending appeal. The applicants contended that the 1st respondent, who was the estate administrator, had disposed of estate property to the 2nd to 12th respondents, and that unless execution was stayed, the respondents would transfer the land into purchasers' names, rendering the appeal nugatory. Only the 5th and 6th applicants swore affidavits in support, with no written authority from the 1st to 4th applicants authorizing them to do so. The respondents opposed on multiple grounds including failure to cite the correct law, lack of evidence supporting the 1st to 4th applicants, improperly sealed annextures, and failure to satisfy the conditions for stay of execution.

Issues

  1. Whether the applicants failed to mention the specific law for the institution of this application before the court
  2. Whether the application by the 1st to 4th applicants is supported by evidence
  3. Whether the applicants' annextures to the affidavits are properly sealed and signed
  4. Whether there is sufficient cause to grant an order for stay of execution
  5. Whether the applicants are entitled to the remedies sought

Orders

  • Application for stay of execution pending appeal is allowed.
  • Costs of the application to abide the outcome of the appeal.

Rules and key headnotes

Stay of Execution — Application of Inherent Jurisdiction — Section 98 Civil Procedure Act
Section 98 of the Civil Procedure Act, which clothes the court with inherent jurisdiction, should not be ordinarily invoked if another express remedy is available under the Civil Procedure Rules.
Procedural Defects — Citation of Wrong Law — Non-fatal Irregularity
Where an application omits to cite any law at all or cites the wrong law but the jurisdiction to grant the order exists, the irregularity or omission can be ignored and the correct law inserted, in accordance with the constitutional directive to administer justice without undue regard to technicalities.
Affidavit — Multiple Parties — Authority to Swear on Behalf of Others
Under Order 1 Rule 12 of the Civil Procedure Rules, where there are multiple applicants, one or more may be authorized by others to appear, plead, or act for them, including swearing affidavits, provided the authority is in writing, signed by the party giving it, and filed in the case. Without such written authorization, a deponent cannot properly swear an affidavit in a representative capacity on behalf of other applicants.
Affidavit — Defective Exhibits — Liberal Approach to Procedural Defects
Failure by a commissioner for oaths to properly seal and sign exhibits to an affidavit is a defect of form rather than substance where the documents are clearly identified in the affidavit itself. Courts should take a liberal approach to such defects in line with Article 126(2)(e) of the Constitution, which directs that justice be administered without undue regard to technicalities.
Stay of Execution — Test for Substantial Loss
An applicant for stay of execution pending appeal must demonstrate that substantial loss will result unless the order is made. Substantial loss refers to loss of real worth or value, as distinguished from loss without value or merely normal loss. It is not enough merely to repeat the words of the rule; the kind of loss must be specific, details must be given, and the court must be satisfied that such loss will really ensue.
Stay of Execution — Security for Due Performance — Liberal Approach
While the Civil Procedure Rules require an applicant for stay of execution to provide security for due performance of the decree, insistence on security for the entire decretal amount is likely to stifle appeals, even those with substantial issues for determination. Courts may adopt a liberal approach and dispense with the requirement for security where appropriate to avoid prejudicing meritorious appeals.

Legislation cited (8)

Cases cited (21)

  • Ahmed Hassan Mulji v Shirimbal Jadavj [1963] EA 217
  • Binaisa Nakalema and 3 Others v Mucunguzi Myers (Miscellaneous Application No. 460 of 2013)
  • Mukuye and 106 Others v Madhavani Group Ltd (Miscellaneous Application No. 821 of 2013)
  • Amongin Jane Frances Okii v Lucy Akello [2015] UGHC
  • Re Christine Namatovu Tebajjukira [1992-93] HCB 85
  • George William Katumba and Others v Abarihanwe Livestock Co-operative Society (Miscellaneous Application No. 6 of 2021)
  • Jonel Limited v Koboko Enterprises Limited (Miscellaneous Application No. 27 of 2016)
  • Nanjibhi Prabhudas & Co. Ltd v Standard Bank Ltd [1968] EA
  • Mukuye Steven and 106 Others v Madhivani Group Ltd (Miscellaneous Application No. 821 of 2013)
  • RTD Col. Kizza Besigye v YK Museveni and The Electoral Commission (Presidential Election Petition No. 1 of 2006)
  • Hon. Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 3 of 2014)
  • Andrew Kansiime Kandura v Richard Kaijuka (Civil Reference No. 15 of 2016)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Appeal No. 18 of 1990)
  • Tanzania Cotton Marketing Board v Cogecot Cotton Co. SA [1995-1998] EA 312
  • Tropical Commodities Suppliers Ltd and Others v International Credit Bank Ltd (Miscellaneous Application No. 379 of 2003)
  • Kwizera v Attorney General (Constitutional Appeal No. 1 of 2008)
  • Abu Wamboya vs. Sulaiman Gidima, HCMA 27/97
  • British India General Insurance Co. Ltd v Dolatrai Solanki (Civil Appeal No. 30 of 1997)
  • Tropical Commodities Supplies Ltd and Others v International Credit Bank Ltd (in liquidation) [2004] 2 EA 331
  • DFCU Bank Ltd v Dr. Ann Persis Nakate Lussejere (Civil Appeal No. 29 of 2003)
  • Kampala Bottlers Ltd v Uganda Bottlers Ltd (Supreme Court Civil Appeal No. 25 of 1995)

Full judgment

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Katuramu and 5 Others v Kanyamu and 11 Others (Miscellaneous Application 21 of 2023) [2024] UGHC 589 (30 April 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.