Wakilii

Katusiime v Kenroy Investiments Limited (Civil Application No. 177 of 2014)

Court of Appeal · [2014] UGCA 107 · 2014 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for an interim order of stay of execution pending determination of a substantive application for stay of execution
Decision
Both the interim and substantive applications for stay of execution dismissed as an abuse of court process

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed an application for an interim stay of execution because no order for leave to appeal had been granted, leaving no valid notice of appeal or pending appeal to ground the application. An order under Order 36 Rule 5 declining leave to appear and defend is not appealable as of right under section 76 of the Civil Procedure Act and Order 44; leave is required and had not been obtained. The applicant had admitted her indebtedness, so the intended appeal had no likelihood of success and any loss could be atoned in damages. The Court found both applications an abuse of process and dismissed them under Rule 2(2) and section 12 of the Judicature Act.

Outcome

Both the interim and substantive applications for stay of execution dismissed as an abuse of court process

Facts

The applicant sought an interim order staying execution of a High Court (Commercial Division) order in Miscellaneous Application No. 132 of 2014 dated 23 April 2014, which had dismissed her application for leave to appear and defend in HCCS No. 69 of 2014, a suit brought under summary procedure (Order 36). An order under Order 36 Rule 5 declining leave is not appealable as of right; leave to appeal was required. The applicant had earlier sought leave at the High Court (Miscellaneous Application No. 294 of 2014) which was granted on condition that she deposit the decretal amount in court, but she failed to comply. She had not obtained leave of the Court of Appeal to appeal. The applicant admitted her indebtedness to the respondent both before and after the High Court decree, and thus had no valid defence to the suit.

Issues

  1. Whether there was a valid notice of appeal and a pending appeal capable of grounding an application for interim stay of execution.
  2. Whether the applicant's intended appeal had a likelihood of success and whether she would suffer irreparable loss if execution proceeded.
  3. Whether the applications constituted an abuse of court process warranting dismissal under Rule 2(2) of the Rules of the Court.

Orders

  • Application No. 177 of 2014 (interim stay) dismissed with costs.
  • Main Application No. 176 of 2014 (substantive stay) dismissed for the same reasons under section 12 of the Judicature Act and Rule 2(2) of the Rules of the Court.
  • No order as to costs in respect of Application No. 176 of 2014.

Rules and key headnotes

Appeals — Orders Appealable as of Right — Order 36 Rule 5 refusal of leave to defend
An order made under Order 36 Rule 5 of the Civil Procedure Rules declining to grant leave to appear and defend a summary suit is not among the orders appealable from the High Court as of right under section 76 of the Civil Procedure Act and Order 44 Rule 1; such an appeal lies only with leave of court.
Stay of Execution — Conditions — Requirement of valid notice and pending appeal
An interim order of stay of execution cannot be granted unless there is a pending application and a pending or intended appeal grounded on a valid notice of appeal; where no leave to appeal has been obtained there is nothing upon which the notice of appeal and the application can stand.
Stay of Execution — Likelihood of Success and Irreparable Loss
A stay of execution will be refused where the intended appeal has no likelihood of success and where any loss occasioned by execution can be atoned by way of damages; an admitted indebtedness leaves the applicant without a valid defence.
Abuse of Process — Power to Prevent under Rule 2(2)
Where applications for stay of execution are devoid of merit and amount merely to a device to buy time, they constitute an abuse of court process which the court may dismiss in exercise of its powers under Rule 2(2) of the Rules of the Court and section 12 of the Judicature Act.

Legislation cited (7)

Full judgment

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Katusiime v Kenroy Investiments Limited (Civil Application No. 177 of 2014) [2014] UGCA 107 (26 June 2014)
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.