Wakilii

Kisawuzi v Oundo (HCT-00-CC-MA 467 of 2013)

High Court · [2014] UGCOMMC 12 · 2014 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of a Chief Magistrate's Court decree pending appeal
Decision
Application for stay of execution dismissed; interim stay vacated

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an applicant for stay of execution must satisfy all three conditions under Order 43 rule 4(3) CPR: substantial loss beyond the ordinary decretal sum, timely application, and full security for the decretal amount. The applicant failed to demonstrate substantial loss beyond the ordinary obligation to pay the decretal sum and costs, and failed to provide adequate security. Application dismissed despite being made without unreasonable delay.

Outcome

Application for stay of execution dismissed; interim stay vacated

Facts

The respondent obtained judgment in Civil Suit No. 1062 of 2010 at the Chief Magistrate's Court Mengo for recovery of USD 7,450 and UGX 600,000 against the applicant. The respondent had given the applicant USD 7,450 to procure a Mercedes Benz E240 2004 and UGX 600,000 as commission. The applicant neither procured the vehicle nor refunded the money. The applicant claimed he transmitted the money to Car Zone Japan on behalf of Paul Eganda, but the company's website closed and phones were switched off. The lower court entered judgment for the respondent. The applicant filed an appeal and sought stay of execution. The respondent had already filed and taxed a bill of costs for execution. The applicant offered to deposit UGX 5,000,000 as security, though the decretal sum with interest and costs exceeded UGX 40,000,000.

Issues

  1. Whether the applicant satisfied the three conditions for grant of a stay of execution under Order 43 rule 4(3) of the Civil Procedure Rules.
  2. Whether substantial loss would result to the applicant unless the order of stay is made.
  3. Whether the application was made without unreasonable delay.
  4. Whether the applicant gave security for due performance of the decree.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.
  • Interim order of stay of execution vacated.

Rules and key headnotes

Stay of Execution — Conditions under Order 43 rule 4(3) CPR — All Three Conditions Mandatory
An applicant for stay of execution must satisfy all three conditions prescribed by Order 43 rule 4(3) of the Civil Procedure Rules, namely: (a) that substantial loss may result to the applicant unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security for due performance of the decree has been given by the applicant. All three conditions are mandatory and must be cumulatively satisfied.
Stay of Execution — Substantial Loss — Must Exceed Ordinary Decretal Liability
Substantial loss under Order 43 rule 4(3)(a) CPR cannot mean the ordinary loss of the decretal sum or costs which the judgment debtor is necessarily subjected to pay. Substantial loss must mean something in addition to and different from the ordinary obligation to pay the decretal sum. The applicant must go beyond vague and general assertions and lay the basis upon which the court can make a finding that substantial loss will result.
Stay of Execution — Security for Decree — Full Decretal Amount Required
The requirement of security for due performance of the decree under Order 43 rule 4(3)(c) CPR is mandatory. The entire decretal amount must be deposited in court as a condition precedent to the grant of a stay of execution. An offer to deposit a sum far short of the total decretal amount, interest and costs does not satisfy this condition.
Stay of Execution — Pendency of Appeal Insufficient Ground
The pendency of an appeal or its perceived high chance of success cannot be used to bar a successful party from exercising the right to enforce a decree in his or her favour. The applicant must satisfy the statutory conditions for stay of execution regardless of the merits of the appeal.

Legislation cited (9)

Cases cited (12)

  • Afaro v Uganda Breweries Ltd (Supreme Court Civil Appeal No. 11 of 2008)
  • Eriab Kabigiza vs Lawrence Sserwanga [1975] HCB 99
  • Hwan Sung Industries Ltd v Tadjin Hussein (Supreme Court Civil Appeal No. 19 of 2008)
  • Wilson v Church (1879) Vol. 12 Ch D 454
  • Souna Cosmetics Ltd v Commissioner Customs URA & Another (Misc. Application No. 424 of 2011)
  • Idah Iterura vs Joy Muguta [2007] HCB Vol. 1 42
  • Steel Rolling Mills Ltd & Another v Gestation Economique Des Mission Catholique & Another (Misc. Application No. 529 of 2009)
  • International Credit Bank Ltd (In Liquidation) v Tropical Commodities Supplies Ltd & 2 Others (Court of Appeal Civil Appeal No. 24 of 2004)
  • Pan African Insurance Company (U) Ltd v International Air Transport Association (Misc. Application No. 86 of 2006)
  • Banshidar vs Pribku Dayal Air 41 1954
  • National Pharmacy Ltd vs Kampala City Council (1979) HCB 132
  • Uganda Revenue Authority v Tembo Steels Ltd (Misc. Application No. 521 of 2007)

Full judgment

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Kisawuzi v Oundo (HCT-00-CC-MA 467 of 2013) [2014] UGCommC 12 (5 February 2014)
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.