Kibirige v Yako Bank Uganda Limited & Another (Civil Application 150 of 2024)

Observed later treatment

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 single Justice granted a stay of execution of the High Court (Commercial Division) default decree pending appeal. The applicant, executor of the deceased's estate, established a prima facie arguable appeal raising whether the suit property formed part of the estate and was fraudulently transferred to the 2nd respondent after death. Relying on the un-rebutted evidence of estate ownership and that the property is a commercial building generating rent to sustain the estate, the court found the applicant would suffer irreparable damage if the property were attached and sold. Having found a prima facie case and irreparable damage, the court declined to consider the balance of convenience, which arises only where the court is in doubt.

Outcome

Stay of execution granted until the determination of the applicant's appeal; costs to abide the appeal.

Facts

The applicant is the executor of the estate of the late Bulaimu Muwanga Kibirige, who died on 10 September 2021. The suit property, a commercial building at LRV 4000 Folio 4 Plot 46, Mulamula Road, Makindye, Kampala, generated rent to sustain the estate. The applicant contended that the property belonged to the estate but was fraudulently and illegally transferred into the name of the 2nd respondent on 7 March 2022, about six months after the deceased's death. Yako Bank obtained a default judgment in High Court (Commercial Division) Civil Suit No. 921 of 2022 and sought to execute it by attachment and sale of the property. The applicant's challenge to the attachment, Miscellaneous Application No. 219 of 2023, was dismissed. He appealed and applied for a stay of execution pending the appeal. The respondents' affidavit in reply did not rebut the applicant's evidence of estate ownership, merely noting the relevant paragraphs.

Issues

1. Whether the applicant established a prima facie case with a likelihood of success on the intended appeal.
2. Whether the applicant would suffer irreparable damage, or the appeal be rendered nugatory, if a stay of execution were not granted.
3. Whether the balance of convenience fell to be considered.

Orders

• An order for stay of execution of the default judgment/decree of the High Court (Commercial Division) in Civil Suit No. 921 of 2022, by attachment and sale of the property comprised in LRV 4000 Folio 4 Plot 46 Mulamula Road, is granted until the determination of the applicant's appeal.
• Costs shall abide the outcome of the appeal.

Rules and key headnotes

Legislation cited (5)

• Judicature (Court of Appeal Rules) Directions r.2(2)
• Judicature (Court of Appeal Rules) Directions r.6(2)(b)
• Judicature (Court of Appeal Rules) Directions r.42(2)
• Judicature (Court of Appeal Rules) Directions r.43
• Judicature (Court of Appeal Rules) Directions r.44(1)

Cases cited (6)

• Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
• Dr. Ahmed Muhammed Kisuule v Greenland Bank (In Liquidation) (Supreme Court Civil Appeal No. 7 of 2020)
• Gashumba Nianiraguha v Samuel Nkundiye (Supreme Court Civil Appeal No. 24 of 2015)
• Theodore Ssekikubo and Others v Attorney General and Another (Constitutional Application No. 6 of 2010)
• Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR
• Giella v Cassman Brown & Co Ltd [1973] EA 358

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Goldmine Finance Limited v Timothy Kayondo and Another (Miscellaneous Appeal 14 of 2024)

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