Wakilii

Kisekka v Mugulula (Miscellaneous Application 59 of 2021)

High Court · [2023] UGHC 369 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal to Court of Appeal, arising from High Court Civil Appeal No. 88 of 2016
Decision
Application for stay of execution dismissed with costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for stay of execution dismissed. The court held that the applicant failed to prove substantial loss, having abandoned the suit property and become illusive to avoid payment of costs. The applicant also failed to demonstrate a prima facie case or likelihood of success on appeal, having not attached a proposed memorandum of appeal despite the decision being over two years old. Security for costs was not considered given the applicant's demonstrated unwillingness to comply with court orders.

Outcome

Application for stay of execution dismissed with costs to the respondent

Facts

The applicant filed a notice of appeal to the Court of Appeal on 12 March 2020 following an unsuccessful appeal in the High Court (Civil Appeal No. 88 of 2016). The respondent, who had been successful in both the trial court and on first appeal, commenced execution on 2 September 2020 and issued an eviction notice on 11 February 2021. The respondent took vacant possession on 23 February 2022. The applicant paid UGX 3,000,000 of the total taxed bill of costs of UGX 15,036,200 but then went into hiding. The applicant sought a stay of execution pending the hearing of the appeal, claiming he would suffer substantial loss as the suit land was his source of livelihood. The respondent contended that execution had been concluded, the applicant had abandoned the property, and there was no appeal actually filed in the Court of Appeal.

Issues

  1. Whether the applicant satisfied the requirements for grant of a stay of execution pending appeal.
  2. Whether the applicant demonstrated substantial loss that would result if stay of execution is not granted.
  3. Whether the appeal has a likelihood of success or discloses a prima facie case.
  4. Whether security for due performance of the decree should be ordered.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Stay of Execution — Requirements for Grant — Substantial Loss
An applicant seeking a stay of execution must prove substantial loss that would result if the stay is not granted. Substantial loss means actual loss, whether great or small, as opposed to nominal damages, and is not determined by any mathematical formula. Where an applicant claims loss of livelihood from land but the evidence shows the applicant abandoned the property and became illusive to avoid payment of costs, the applicant fails to prove substantial loss.
Stay of Execution — Prima Facie Case — Proposed Memorandum of Appeal
In an application for stay of execution pending a second appeal, where the first appellate decision was delivered more than two years prior, the applicant should attach a proposed memorandum of appeal to enable the court to determine whether a prima facie case exists or whether the appeal has a likelihood of success. Failure to attach such a memorandum, particularly where the applicant merely states in general terms that the court failed to properly evaluate evidence, prevents the court from assessing the merits of the proposed appeal.
Stay of Execution — Security for Costs — Applicant's Conduct
Courts are now inclined to order security for costs rather than security for due performance of the decree, as the latter is likely to hinder appeals. However, where an applicant has demonstrated unwillingness to comply with court orders by becoming illusive to avoid satisfaction of a debt arising from a taxed bill of costs, even after making a part payment, the court may decline to consider security for costs as an avenue for granting a stay.

Legislation cited (6)

  • Civil Procedure Act s.98
  • Civil Procedure Rules O.43 r.2
  • Civil Procedure Rules O.43 r.4
  • Civil Procedure Rules O.43 r.6
  • Civil Procedure Rules O.41
  • Judicature (Court of Appeal Rules) Directions r.43

Cases cited (7)

  • Gashumba v Sam Nkundiya (Supreme Court Civil Appeal No. 24 of 2015)
  • Hwang Sung Industries Limited v Tajdin Hussein and Others (Civil Application No. 19 of 2008)
  • Hon. Theodore Ssekikubo and Others v Attorney General and Others (Supreme Court Civil Appeal No. 3 of 2014)
  • Kyambogo University v Prof. Isaiah Omollo Ndiege (Court of Appeal Miscellaneous Application No. 341 of 2013)
  • Tropical Commodities Suppliers Ltd and 2 Others v International Credit Bank Ltd (In Liquidation) (Miscellaneous Application No. 379 of 2003)
  • John Baptist Kwanga v Namyalo Kevina and Another (High Court Miscellaneous Application No. 12 of 2017)
  • DFCU Bank Ltd v Dr. Ann Persis Nakate Lussejere (Court of Appeal Civil Appeal No. 29 of 2003)

Full judgment

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

Kisekka v Mugulula (Miscellaneous Application 59 of 2021) [2023] UGHC 369 (30 May 2023)
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.