Kisawuzi v DFCU Bank Ltd (Civil Application No. 0064 of 2016)

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 Court held that an application for stay of execution must first be made in the High Court under Rule 42 of the Court of Appeal Rules unless special circumstances exist; the alleged limitation of time was mere speculation and not a special circumstance, rendering the stay application incompetent. On the temporary injunction, the Court held it was properly before it under Rule 6(2)(b), but the applicant had failed to deposit 30% of the forced sale value of the mortgaged property as required by Regulation 13(1) of the Mortgage Regulations 2012, and therefore could not obtain an injunction restraining the sale. The application was dismissed with costs.

Outcome

Application for temporary injunction and stay of execution dismissed with costs

Facts

The applicant sued DFCU Bank Limited and two borrowers, later proceeding only against the Bank, seeking declarations that he was not liable for a loan advanced to the borrowers without his knowledge and consent, and that his title (LRV 3808 Folio 20 Plot 665 Kyadondo Block 187 at Kasangati) had been used as security and advertised for sale without notice. The High Court entered judgment on 7 December 2015, finding that although the applicant was not personally liable, the Bank was entitled to use the security to realise its money absent repayment. Dissatisfied, the applicant filed Civil Appeal No. 54 of 2016 and sought a temporary injunction and stay of execution to stop the sale. The Bank had advertised the property for sale by public auction in the Daily Monitor of 1 March 2016, with the sale slated after 30 days. The applicant sought relief to preserve the property pending appeal.

Issues

1. Whether the application for stay of execution was competently brought directly in the Court of Appeal without first being made in the High Court under Rule 42 of the Court of Appeal Rules.
2. Whether the applicant established special circumstances justifying direct filing in the Court of Appeal.
3. Whether the applicant was entitled to a temporary injunction restraining sale of the mortgaged property without depositing 30% of the forced sale value under Regulation 13(1) of the Mortgage Regulations 2012.

Orders

• Application for stay of execution found incompetent and dismissed.
• Order for temporary injunction declined.
• Application dismissed with costs to the respondent.

Rules and key headnotes

Legislation cited (7)

• Rules of the Court of Appeal r.2(2)
• Rules of the Court of Appeal r.6(2)(b)
• Rules of the Court of Appeal r.42
• Rules of the Court of Appeal r.53(3)
• Civil Procedure Rules O.41 r.1
• Civil Procedure Rules O.39 r.4(3)
• Mortgage Regulations 2012 reg.13(1)

Cases cited (5)

• Uganda Air Cargo Corporation Vs. Kirunda and others CAMA No. 173 of 2015
• Hajji Ali Cheboi v Kiroko Mesulamu CAMA No 105/2014
• Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
• Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Civil Appeal No. 341 of 2013)
• Robert Kavuma v Hotel International (Supreme Court Civil Appeal No. 8 of 1990)

Cases citing this judgment (9)

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.

• Equity Bank (U) Limited v Rubahimbya (Civil Appeal 19 of 2023)
• Musinguzi v Centenary Rural Development Bank Limited (Miscellaneous Appeal 23 of 2021)
• Busia Produce Dealers Multi- Purpose Cooperatives Society v Stanbic Bank (U) Limited (Civil Miscellaneous Application No. 185 of 2021)
• Performance Furnishing (U) Ltd v Diamond Trust Bank(U) Ltd (Miscellaneous Civil Application No. 300 of 2020)
• Performance Furnishings Limited & Anor v Diamond Trust Bank Limited (Miscellaneous Application No. 300 of 2020)
• Shumuk Properties Ltd v Guaranty Trust Bank (U) Ltd (Miscellaneous Application No. 231 of 2018)
• Parabot Breweries Ltd (In Recievership) v Standard Chatered Bank (U) Ltd & Anor (Miscellaneous Application No. 208 of 2018)
• Parul Ben Barot v victoria Finance Company Ltd (Miscellaneous Application No. 319 of 2017)
• Willis International Engineering and Contractors Ltd & Anor v DFCU Bank (Miscellaneous Application No. 1000 of 2015)

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