Wakilii

Kayongo and Another v Mukiibi (Miscellaneous Application No. 68 of 2020)

High Court · [2021] UGHCCD 212 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of decree pending appeal from civil suit judgment
Decision
Stay of execution granted pending appeal, conditional on deposit of security for due performance

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court granted a stay of execution of the decree in Civil Suit No. 36 of 2017 pending determination of the appeal. The court found that the applicants had lodged an appeal with a high likelihood of success, would suffer substantial loss if execution proceeded because they would be evicted from the suit land before the appeal is determined, filed the application without unreasonable delay, and faced an imminent threat of execution. The court ordered the applicants to deposit UGX 35,000,000 as security for due performance within 30 days.

Outcome

Stay of execution granted pending appeal, conditional on deposit of security for due performance

Facts

The applicants were defendants in Civil Suit No. 36 of 2017 and received judgment on 17 June 2020. They filed a notice of appeal against that judgment. The trial court ordered the respondent to pay UGX 25,000,000 to the first applicant, which the respondent deposited in court. The decree had been extracted and taxed. The respondent filed a notice to show cause why execution should not issue. The second applicant was in possession of the suit land operating a petrol station purchased from the first applicant. The applicants had received UGX 35,000,000 as consideration under a contract related to the suit property. The respondent sought execution of the decree to take possession of the suit land.

Issues

  1. Whether the applicants are entitled to a stay of execution of the decree in Civil Suit No. 36 of 2017 pending determination of their appeal.
  2. Whether the applicants should provide security for due performance of the decree as a condition for the stay of execution.

Orders

  • Application allowed.
  • Stay of execution of the decree in Civil Suit No. 36 of 2017 granted pending the determination of Civil Appeal No. 237 of 2020.
  • Applicants to deposit UGX 35,000,000 as security for due performance within 30 days from the date of this order.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Stay of Execution — Grounds for Grant — Likelihood of Success on Appeal
For a stay of execution pending appeal to be granted, the applicant must show that the appeal has a high likelihood of success by demonstrating that the grounds of appeal raise important questions for determination and are not merely fishing tactics, without requiring the court hearing the stay application to pre-empt the merits of the appeal.
Civil Procedure — Stay of Execution — Substantial Loss — Eviction from Land
Substantial loss for purposes of a stay of execution does not represent any particular amount or size and refers to any loss, great or small, that is of real worth or value. An applicant in possession of suit land will suffer substantial loss if execution proceeds and they are evicted before the appeal is determined, thereby justifying a stay to maintain the status quo.
Civil Procedure — Stay of Execution — Security for Due Performance — Discretion of Court
The court has discretion to grant a stay of execution without requiring security for due performance of the decree. While security for due performance means the entire decretal sum, courts have been reluctant to insist on this condition as it is likely to stifle appeals, and have instead been keen to order security for costs only.
Civil Procedure — Stay of Execution — Imminent Threat of Execution — Notice to Show Cause
The filing of a notice to show cause why execution should not issue, together with the deposit of monies ordered to be paid by the trial court, constitutes preparatory steps towards execution proceedings and demonstrates an imminent threat of execution sufficient to justify the grant of a stay pending appeal.

Legislation cited (4)

Cases cited (6)

  • Tropical Commodities Suppliers Ltd and Others v International Credit Bank Ltd (in Liquidation) [2004] 2 EA 331
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Miscellaneous Civil Application No. 341 of 2013)
  • John Baptist Kawanga v Namyalo (Miscellaneous Application No. 12 of 2017)
  • Margarette Kato v Nalwo (Miscellaneous Application No. 11 of 2011)
  • DFCU Bank Ltd v Dr. Ann Persis Nakate Lussejere (Court of Appeal Civil Appeal No. 29 of 2003)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)

Full judgment

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

Kayongo and Another v Mukiibi (Miscellaneous Application No. 68 of 2020) [2021] UGHCCD 212 (6 May 2021)
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.