Wakilii

Kesacon Services Limited v Stanbic Bank Limited (Miscellaneous Application 1171 of 2020)

High Court · [2021] UGCOMMC 172 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to amend notice of appeal and stay of execution pending appeal, arising from judgment in Civil Suit No. 0066 of 2012
Decision
Application dismissed with costs to the respondent

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Holding

The court held that the application for leave to amend the notice of appeal was unnecessary as the notice substantially complied with the required form despite a technical heading error. On the stay of execution, the court held that the applicant failed to satisfy the majority of essential requirements, including demonstrating that the appeal had a likelihood of success, that there was imminent threat of execution, that substantial loss would result, and that security for due performance had been provided. The application was dismissed with costs.

Outcome

Application dismissed with costs to the respondent

Facts

The applicant had sued the respondent bank for breach of a loan agreement and mortgage deed, seeking special damages of UGX 1,502,306,176. On 11 August 2020, judgment was entered in favour of the respondent, ordering the applicant to refund UGX 476,381,200 with interest at 7% per annum from 16 September 2012. The applicant filed a notice of appeal on 18 August 2020 and applied for a certified copy of proceedings. Nearly four months later, on 8 December 2020, the applicant filed this application seeking leave to amend the notice of appeal (which had a heading error stating 'Court of Appeal' instead of 'High Court') and an order staying execution of the decree pending appeal. The respondent opposed the application, arguing the notice was fatally defective and that the applicant should deposit the decretal sum (which had grown to over UGX 776 million with interest) as a condition for any stay.

Issues

  1. Whether the court has jurisdiction to grant leave to amend a notice of appeal filed before it.
  2. Whether the applicant satisfied the conditions for grant of a stay of execution pending appeal.

Orders

  • Application for leave to amend notice of appeal deemed unnecessary.
  • Application for stay of execution pending appeal dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Notice of Appeal — Amendment — Substantial Compliance with Form
A notice of appeal is only required to be substantially in the prescribed form. Where a notice of appeal contains all essential components (statement of whether appealing whole or part of decision, specification of part complained of where applicable, address for service, names and addresses of persons to be served, date and signature) but has an incorrect heading, this is a mere want of form that does not render the notice defective, particularly where it was filed in the correct forum.
Civil Procedure — Stay of Execution — Conditions for Grant — Likelihood of Success on Appeal
In determining whether to grant a stay of execution pending appeal, the court must be satisfied that the prospects of the appeal succeeding are not remote but that there is a realistic chance of success. More is required than a mere possibility of success. There should be a sound, rational basis, founded on the facts and the law, and a measure of certainty justifying the conclusion that the appellate court will differ from the trial court. Where an applicant fails to provide a draft memorandum of appeal or advert to the arguments intended to be raised, it is not possible to assess whether there is an arguable case on appeal.
Civil Procedure — Stay of Execution — Money Decrees — When Appeal Rendered Nugatory
Satisfaction of a money decree does not ordinarily pose the danger of rendering a pending appeal nugatory where the respondent is not impecunious, as the remedy of restitution is available to the applicant in the event the appeal is allowed. The presumption is that payment made to the respondent in execution of the decree will be reversible in the event of the applicant succeeding on appeal.
Civil Procedure — Stay of Execution — Imminent Threat of Execution — Evidence Required
An order of stay will issue only if there is actual or presently threatened execution. There must be unequivocal evidence showing that unconditional steps conveying gravity of purpose and imminent prospect of execution have been taken by the respondent. Steps demonstrating serious expression of intent include extracting the decree, presenting and having a bill of costs taxed, applying for issuance of a warrant of execution, and issuing a notice to show cause why execution should not issue.
Civil Procedure — Stay of Execution — Security for Due Performance — Distinction from Security for Costs
In the case of a money decree, furnishing security for due performance of the decree denotes depositing the disputed amount. This is distinct from security for costs, which ensures a respondent is protected for costs incurred in responding to the appeal. Courts have been reluctant to order security for the entire decretal amount as this requirement is likely to stifle appeals, but the court has discretion to direct deposit of some amount as a condition for grant of stay in appropriate cases.
Civil Procedure — Stay of Execution — Mortgaged Property — Equitable Considerations
The equitable basis for staying execution upon default is at its weakest where the property at issue is mortgaged, because a property owner who mortgages property has advance notice that it may be sold off in the event of default. Mere averments of irreparable loss without objective evidence of significant difficulty, expense or disruption beyond that to which every judgment debtor is necessarily subjected when deprived of property in consequence of losing a case, are insufficient to warrant a stay.

Legislation cited (10)

  • Judicature Act s.33
  • Civil Procedure Rules O.43 r.4(2)
  • Civil Procedure Rules O.43 r.4(3)
  • Civil Procedure Rules O.52 r.1
  • Civil Procedure Rules O.6 r.9
  • Civil Procedure Rules O.6 r.18
  • Civil Procedure Rules O.6 r.31
  • Civil Procedure Rules O.6 r.17
  • Judicature (Court of Appeal Rules) Directions r.76(5)
  • Judicature (Court of Appeal Rules) Directions r.6(2)

Cases cited (6)

  • Lawrence Musiitwa Kyazze v Eunice Businge (Supreme Court Civil Application No. 18 of 1990)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Miscellaneous Civil Application No. 341 of 2013)
  • Tropical Commodities Supplies Ltd and Others v International Credit Bank Ltd (in Liquidation) [2004] 2 EA 331
  • Alice Wambui Nganga v. John Ngure Kahoro and another, ELC Case No. 482 of 2017 (at Thika); [2021] eKLR
  • DFCU Bank Ltd v Dr. Ann Persis Nakate Lussejere (Court of Appeal Civil Appeal No. 29 of 2003)
  • Erinford Properties Ltd v Cheshire County Council [1974] 412 All ER 448

Full judgment

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

Kesacon Services Limited v Stanbic Bank Limited (Miscellaneous Application 1171 of 2020) [2021] UGCommC 172 (27 August 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.