Wakilii

Khan v Din (Civil Appeal No. 27 of 1955)

East African Court of Appeal · [1956] EACA 2 · 1956 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of Rent Control Board orders after filing appeal to Supreme Court
Decision
Stay granted for eviction order only; applicant to pay costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that an applicant must first apply to the Rent Control Board for stay of execution under rule 5 of the Rules of Court, 1950, before approaching the Supreme Court. Order XLI, rule 4 does not apply to Rent Control Board orders because rule 5 exclusively covers the field of stay applications. While the Court possesses inherent jurisdiction to grant stays, exercising it where an applicant has flouted prescribed procedure without good cause would constitute abuse of process. Stay of the eviction order was granted only because the respondent did not oppose it and the applicant had already vacated. Stay of the order to pay rent was refused absent exceptional circumstances.

Outcome

Stay granted for eviction order only; applicant to pay costs

Facts

A tenant was ordered by the Central Rent Control Board to vacate his landlord's premises and to pay rent to the date of vacation. The tenant filed an appeal to the Supreme Court and thereafter applied to the Supreme Court for stay of execution of both orders, averring that if he were ejected or paid the rent pending appeal he would suffer substantial loss. The landlord's advocate accepted that the tenant had already quitted the premises and did not oppose stay of the eviction order, but opposed stay of the order to pay rent. The tenant had at no time applied for stay of execution to the Board, either before or after filing the appeal. The tenant relied on Order XLI, rule 4 of the Civil Procedure Rules or alternatively the inherent jurisdiction of the Supreme Court.

Issues

  1. Whether the Supreme Court has jurisdiction to entertain an application for stay of execution of a Rent Control Board order where no prior application was made to the Board.
  2. Whether Order XLI, rule 4 of the Civil Procedure (Revised) Rules, 1948 applies to applications for stay of execution of Rent Control Board orders.
  3. Whether the Supreme Court's inherent jurisdiction can be invoked to grant a stay where the applicant has not followed the procedure prescribed by rule 5 of the Rules of Court, 1950.
  4. Whether stay of execution should be granted in respect of an order to vacate premises.
  5. Whether stay of execution should be granted in respect of an order to pay rent.

Orders

  • Stay of execution granted in respect of the order requiring the applicant to vacate the premises, pending determination of the appeal.
  • Stay of execution refused in respect of the order requiring payment of rent.
  • Applicant to pay the costs of the application.

Rules and key headnotes

Civil Procedure — Stay of Execution — Rent Control Board Orders — Requirement to Apply to Board First
An applicant seeking stay of execution of a Rent Control Board order must first apply to the Board under rule 5 of the Increase of Rent (Restriction) Rules of Court, 1950, before filing an appeal, and cannot approach the Supreme Court in the first instance.
Civil Procedure — Stay of Execution — Applicability of Order XLI Rule 4
Order XLI, rule 4 of the Civil Procedure (Revised) Rules, 1948 does not apply to applications for stay of execution of Rent Control Board orders because rule 5 of the Rules of Court, 1950 exclusively covers the field of stay applications from Rent Control Boards and leaves no room for supplementation by the more general Civil Procedure Rules.
Civil Procedure — Inherent Jurisdiction — Limits on Exercise
While the Supreme Court possesses inherent jurisdiction to grant stays of execution to promote the ends of justice or prevent abuse of process, allowing an applicant to flout prescribed procedure without good cause and then invoke inherent jurisdiction would itself constitute an abuse of the process of the Court.
Civil Procedure — Stay of Execution — Eviction Orders
In the case of an eviction order, a court will ordinarily grant a stay of execution to preserve the status quo pending the decision on appeal, provided the applicant has shown good cause for not following prescribed procedure or in the absence of opposition.
Civil Procedure — Stay of Execution — Orders to Pay Money
Stay of execution of an order to pay rent or money is not granted unless exceptional circumstances exist, because money paid over can usually be paid back again and considerations regarding preservation of an irreversible status quo do not apply.

Legislation cited (5)

  • Increase of Rent (Restriction) (Enforcement of Determination and Orders of the Board and Appeals from the Board's Determinations and Orders to the Supreme Court) Rules of Court, 1950 rule 5
  • Increase of Rent (Restriction) (Enforcement of Determination and Orders of the Board and Appeals from the Board's Determinations and Orders to the Supreme Court) Rules of Court, 1950 rule 12
  • Civil Procedure (Revised) Rules, 1948 Order XLI rule 4
  • Civil Procedure Ordinance s.97
  • Increase of Rent (Restriction) Ordinance, 1949

Cases cited (3)

  • Mohamed Hayal v Noor Fatma w/o Sheikh Gui Mohamed (Civil Appeal No. 18 of 1953)
  • Bhagwanji Premchand and Others v Gomes and Others (Civil Appeal No. 52 of 1953)
  • B G Vyas v A B De Souza (1954) 27 KLR 120

Full judgment

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

Khan v Din (Civil Appeal No. 27 of 1955) [1956] EACA 2 (1 January 1956)
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.