Wakilii

Kiggundu & 7 Others v Kiyaga (Miscellaneous Application 551 of 2024)

High Court · [2024] UGHCFD 58 · 2024 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal arising from Miscellaneous Application Appeal No. 0001 of 2021
Decision
Stay of execution granted on limited grounds pending disposal of taxation reference; appeal to Court of Appeal declared a nullity for want of leave

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an appeal from an interlocutory order requires leave of court under Order 44 Rule 2 of the Civil Procedure Rules. An appeal lodged without seeking leave where leave is required is a nullity. The omission to seek leave, being an essential step prescribed by law, rendered the applicants' appeal to the Court of Appeal procedurally defective. However, the application for stay of execution was allowed on narrow grounds: to permit the applicants to pursue a taxation reference for which leave had been granted in a related application, as the bill of costs taxed exceeded what was awarded.

Outcome

Stay of execution granted on limited grounds pending disposal of taxation reference; appeal to Court of Appeal declared a nullity for want of leave

Facts

The applicants filed Civil Suit No. 0073 of 2021 and a temporary injunction application against the respondent. The temporary injunction was granted in their favour with costs. The respondent appealed (Miscellaneous Application Appeal No. 0001 of 2021), which was allowed and the respondent awarded costs of that appeal. The applicants then appealed to the Court of Appeal (Civil Appeal No. 0330 of 2022) without seeking leave. The respondent commenced execution proceedings and obtained a taxed bill of costs which included costs of the main suit and the temporary injunction application, not merely the costs of the appeal awarded to him. The applicants sought stay of execution pending their appeal. In a related application (Miscellaneous Application No. 0552 of 2024), the court granted the applicants leave to file a taxation reference out of time because the bill of costs exceeded what was awarded.

Issues

  1. Whether there is sufficient or just cause to grant a stay of execution in Miscellaneous Application Appeal No. 0001 of 2021.
  2. Whether the appeal to the Court of Appeal was competently filed without leave of court.
  3. Whether there are any remedies available to the parties.

Orders

  • The preliminary objection succeeds.
  • The execution of the Orders arising from Miscellaneous Application Appeal No. 0001 of 2021 is hereby stayed pending the disposal of the Taxation Reference for which leave was granted arising from Miscellaneous Application No. 0552 of 2024 (Kiggundu Samuel & 7 Others versus Kiyaga Geoffrey) NOT Civil Appeal No. 0330 of 2022.
  • Each party shall bear its own costs of this Application.

Rules and key headnotes

Civil Procedure — Appeals — Leave to Appeal — Interlocutory Orders
An appeal from an interlocutory order made by the High Court requires leave of court under Order 44 Rule 2 of the Civil Procedure Rules, either from the court making the order or the appellate court, and an appeal lodged without seeking such leave where it is required is procedurally defective and a nullity.
Civil Procedure — Essential Steps — Failure to Perform
The omission to take an essential step prescribed by law, such as seeking leave to appeal where required, renders the subsequent legal process a nullity, as taking an essential step is the performance of an act fundamentally necessary and demanded by the legal process.
Civil Procedure — Stay of Execution — Pending Appeal
Where an appeal is declared a nullity for want of leave, ordinarily no stay of execution can be granted on the basis of that appeal; however, the court retains discretion to grant a stay on other independent grounds where justice requires.
Civil Procedure — Taxation of Costs — Scope of Award
Where a court awards costs only in respect of a specific proceeding, a bill of costs that includes items from other proceedings not covered by the costs award exceeds the court's order and is a proper ground for a taxation reference.

Legislation cited (4)

Cases cited (8)

  • Joseph Kaweesa v Diana Mugisha (Civil Appeal No. 28 of 2013)
  • Arthur Nuwagaba & Others v The Owners Condominium Plan (Civil Appeal No. 53 of 2013)
  • Sage Jeremy Wellington v Balimunsi Sage Catherine Smith & Another (Civil Appeal No. 31 of 2023)
  • Grace Namulondo & 3 Others v Jone Johns Serwanga Salongo & 2 Others (Miscellaneous Cause No. 1 of 2019)
  • Philip Keipto Chemwolo & Anor versus Augustine Kubende (1986) KLR 495
  • Branco Arabe Espanol versus Bank of Uganda [1999] 2 EA 22
  • Tropical Commodities Suppliers Ltd & Others v International Credit Bank Ltd (In Liquidation) (Miscellaneous Application No. 379 of 2003)
  • Andrew Maviri v Jomayi Property Consultants (Civil Appeal No. 274 of 2014)

Full judgment

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

Kiggundu & 7 Others v Kiyaga (Miscellaneous Application 551 of 2024) [2024] UGHCFD 58 (27 September 2024)
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.