Kemba v FINCA (U) Limited (HCT-04-CV- MA- 78 OF 2016)

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 High Court dismissed the application for stay of execution. The applicants failed to prove substantial loss, as the appeal concerned only a point of law regarding costs where the advocate lacked a valid practicing certificate, which had no bearing on execution. The court found insufficient evidence that execution would render the appeal nugatory. The applicants also failed to provide security for due performance of the decree as required under Order 43 Rule 4(3) of the Civil Procedure Rules.

Outcome

Application for stay of execution dismissed

Facts

The applicants sought stay of execution of a decree in HCCA 161 of 2014 pending determination of their appeal to the Court of Appeal. The appeal challenged the trial judge's direction on costs where the advocate prosecuting the matter was found not to possess a valid practicing certificate. The respondent had filed a bill of costs for taxation. The applicants argued they would suffer substantial loss if execution proceeded, but did not offer security for performance of the decree.

Issues

1. Whether the applicants satisfied the requirements for stay of execution under Order 43 Rule 4 of the Civil Procedure Rules.
2. Whether the applicants demonstrated that substantial loss would result if the stay was not granted.
3. Whether the application was made without unreasonable delay.
4. Whether the applicants provided security for due performance of the decree.

Orders

• Application dismissed.
• Costs awarded to the respondent.

Rules and key headnotes

Legislation cited (7)

• Civil Procedure Act s.98
• Civil Procedure Rules Order 43 Rule 4
• Civil Procedure Rules Order 52 Rule 1
• Civil Procedure Rules Order 52 Rule 3
• Judicature (Court of Appeal Rules) (Directions) Rule 42
• Civil Procedure Rules Order 22 Rule 26
• Civil Procedure Rules Order 43 Rule 3(3)

Cases cited (7)

• Tropical Commodities Suppliers Ltd & Others v Credit Bank (in liquidation) (2004) 2 EA 331
• Kyambogo University v Professor Isaiah Omolo Ndiege (Court of Appeal Civil Appeal No. 341 of 2013)
• PK Sengendo v Busulwa Florence and Male Abdu (Court of Appeal Civil Appeal No. 207 of 2014)
• National Enterprise Corporation v Mukisa Foods (Miscellaneous Application No. 7 of 1998)
• Lawrence Musitwa Kyaze v Eunice Busingye (Supreme Court Civil Case No. 18 of 1990)
• Kampala Bottlers Ltd v Uganda Bottlers (Supreme Court Civil Application No. 25 of 1995)
• UCB Ltd v Sanyu & Others (1999) KALR

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