Kenyi v Kenyi & 3 Others (Civil Application 189 of 2024)

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 applicant, administrator of an estate, sought a stay of execution pending appeal against a High Court ruling that found him in contempt and ordered compliance, payment and possible committal to civil prison. The respondents objected that the appeal was incompetent because the applicant had filed it without obtaining the leave of court required for appeals from such orders. A single Justice of the Court of Appeal upheld the objection, holding that the right of appeal is a creature of statute and that an incompetent notice of appeal cannot found an application for a stay of execution. With no valid appeal pending, the application was incompetent and was struck out without consideration of its merits; costs to abide the appeal.

Outcome

Application for a stay of execution struck out as incompetent; merits not considered.

Facts

The estate of the late Hajji Juma Kenyi gave rise to litigation between Mujib Juma Kenyi, the applicant administrator, and four respondents connected to the same estate. In High Court Civil Suit No. 105 of 2020 the trial judge delivered a ruling on 31 August 2023 finding the applicant in contempt of court, ordering him to comply with the suit's orders within fifteen days, to pay the estate UGX 10,000,000 within thirty days, and providing that on default he would be committed to civil prison. The applicant filed a notice of appeal, requested a record of proceedings, and lodged Court of Appeal Civil Appeal No. 1059 of 2023. He then applied to the Court of Appeal for a stay of execution to prevent his arrest, committal and enforcement of the orders pending determination of that appeal. The respondents opposed the application, contending that the appeal had been filed without the leave of court required for such orders and that the application was an abuse of process given numerous related applications the applicant had previously brought.

Issues

1. Whether there was a valid and competent appeal capable of founding the application for a stay of execution, given that the applicant had not obtained leave to appeal.
2. Whether the application for a stay of execution was an abuse of court process.
3. Whether the applicant satisfied the conditions for the grant of a stay of execution pending appeal.

Orders

• The preliminary objection is upheld.
• The application for a stay of execution is struck out as incompetent.
• Costs shall abide by the outcome of the appeal.

Rules and key headnotes

Legislation cited (10)

• Judicature (Court of Appeal) Rules SI 13-10 r.2(2)
• Judicature (Court of Appeal) Rules SI 13-10 r.4
• Judicature (Court of Appeal) Rules SI 13-10 r.5
• Judicature (Court of Appeal) Rules SI 13-10 r.6(2)(b)
• Judicature (Court of Appeal) Rules SI 13-10 r.42
• Judicature (Court of Appeal) Rules SI 13-10 r.76
• Judicature Act s.10
• Civil Procedure Act s.66
• Civil Procedure Act s.76
• Civil Procedure Rules Order 44

Cases cited (14)

• Dr Ahamed Muhammed Kisuule v Greenland Bank (in liquidation) (Supreme Court Miscellaneous Application No. 7 of 2010)
• Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Civil Application No. 341 of 2013)
• Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
• Gashumba v Nkundiye (Civil Application No. 24 of 2015)
• National Insurance Corporation v Mukisa Foods (Miscellaneous Application No. 7 of 1998)
• Kelspo Sekandi Lusangwa v Administrator General (Miscellaneous Application No. 457 of 2022)
• Dox Tibeingana v Vijay Reddy (Miscellaneous Application No. 665 of 2019)
• Cane Land Ltd & Others v Delphis Bank Ltd (Civil Application No. 344 of 1999) (Kenya Court of Appeal)
• Henkay Nigeria Limited v Cadbury Nigeria Limited No. 29 of 2006 (Supreme Court of Nigeria)
• DFCU Bank Limited v Dr. Ann Persis Nakate (Court of Appeal Civil Application No. 29 of 2003)
• Nganga v Kimani [1959] E.A. 69
• Iddi Heltani v Hamisi Binti Alhumani (1962) E.A. 761
• Hon. Theodore Ssekikubo & Others v Attorney General and Another (Constitutional Application No. 6 of 2013)
• Lukwago Elias v Attorney General & Another [2014] UGSC 405

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