Wakilii

Kisembo & Others v Tibezinda & Others (Miscellaneous Application 5 of 2023)

Supreme Court · [2023] UGSC 70 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for an interim order of stay of execution pending disposal of a substantive application for stay, arising from a third intended appeal to the Supreme Court
Decision
Interim order of stay of execution granted pending disposal of the substantive application

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On an application for an interim order of stay of execution arising from an intended third appeal, the Supreme Court (Chibita JSC) restated the conditions for an interim stay under Rule 6(2)(b) of the Supreme Court Rules: a notice of appeal, a pending substantive application, a serious threat of execution, that the appeal would be rendered nugatory, a reasonable likelihood of success, and irreparable loss. The court held that where respondents wrote letters asking the applicants to vacate the disputed land, any ambiguity as to whether this amounted to a threat of execution is resolved in favour of the applicants, who are on the receiving end of the communication. Finding the conditions satisfied, the court granted the interim order restraining eviction pending disposal of the main application.

Outcome

Interim order of stay of execution granted pending disposal of the substantive application

Facts

The dispute concerned a piece of land at Kitamanya village, Kikwanana Parish, Nyagahya sub-county, Masindi District, the subject of a suit filed in the Chief Magistrates Court of Masindi in 2006. In 2014 the Chief Magistrate declared the applicants the rightful owners of most of the land, save for pieces occupied by the respondents. On appeal, the High Court reversed that decision and allowed the appeal. The Court of Appeal affirmed the High Court and dismissed the applicants' further appeal. Dissatisfied, the applicants sought to bring a third appeal to the Supreme Court and filed Miscellaneous Application No. 5 of 2023 for a certificate of importance. Pending that, they applied for an interim order to stay execution of the Court of Appeal's orders. The respondents had written letters to the applicants asking them to leave the land, which the applicants interpreted as a threat of eviction; the respondents denied any imminent threat of execution.

Issues

  1. Whether the applicants satisfied the conditions for the grant of an interim order of stay of execution pending disposal of the substantive application.
  2. Whether the application was incompetent for failure to first seek a stay in the Court of Appeal and on account of the alleged death of the 4th applicant.

Orders

  • Interim Order of stay of execution granted, restraining the Respondents and their agents from evicting or threatening to evict the Applicants until the final disposal of main application No. 5 of 2023, or until further orders of the Court.
  • Costs to abide the outcome of the substantive application.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for an Interim Order Pending Appeal
An applicant for an interim order of stay of execution must show that a notice of appeal has been filed and a certified copy of the judgment and proceedings requested, that a substantive application for stay has been lodged, that there is a serious threat of execution, that the substantive application and appeal will be rendered nugatory if no order is granted, that the appeal has a reasonable likelihood of success, and that the applicant will suffer irreparable loss if the order is refused.
Civil Procedure — Stay of Execution — Threat of Execution — Resolution of Ambiguity in Favour of Applicant
Where the conduct relied on as a threat of execution is ambiguous, such as letters requesting occupants to vacate disputed land, any interpretation of that communication is resolved in favour of the applicant, who is on the receiving end of the communication, since it is the applicant's reasonable interpretation that matters in the absence of further explanation by its author.
Civil Procedure — Preliminary Objection — Need for Evidential Support
A preliminary point of law, such as an assertion that a party has died so as to affect the competence of the application, that is unsupported by evidence cannot be taken seriously and will be disregarded.

Legislation cited (10)

  • Judicature Act s.6(2)
  • Judicature (Supreme Court Rules) Directions Rule 2(2)
  • Judicature (Supreme Court Rules) Directions Rule 3(b)
  • Judicature (Supreme Court Rules) Directions Rule 6(2)(b)
  • Judicature (Supreme Court Rules) Directions Rule 39(1)(b)
  • Judicature (Supreme Court Rules) Directions Rule 42(1)
  • Judicature (Supreme Court Rules) Directions Rule 43
  • Judicature (Supreme Court Rules) Directions Rule 50
  • Judicature (Supreme Court Rules) Directions Rule 51
  • Judicature (Supreme Court Rules) Directions Rule 72(1)

Cases cited (10)

  • Hwang Sung Industries Ltd v Tajdin Hussein and 2 Others (Civil Appeal No. 19 of 2008)
  • Gashumba Maniraguha v Sam Nkundiye (Civil Appeal No. 25 of 2014)
  • Osman Kassim Ramathan v Century Bottling Co. Ltd (Civil Appeal No. 35 of 2019)
  • Remigio Obwana v The Registered Trustees of Tororo Diocese (Civil Appeal No. 14 of 2021)
  • Paddy Musoke v John Agard & 2 Others (Civil Appeal No. 37 of 2021)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Appeal No. 18 of 1990)
  • Francis Drake Lubega v Attorney General & Anor (Miscellaneous Application No. 13 of 2015)
  • Theodore Ssekikubo & Others v Attorney General (Civil Appeal No. 4 of 2014)
  • Belex Tours & Travel Ltd v Crane Bank Ltd (Miscellaneous Application No. 21 of 2015)
  • Kiganda John & Anor v Yakobo M.N. Senkungu (Civil Appeal No. 16 of 2017)

Full judgment

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

Kisembo & Others v Tibezinda & Others (Miscellaneous Application 5 of 2023) [2023] UGSC 70 (14 April 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.