Wakilii

Kiweewa Shaban v Mulondo Nasur (Civil Application No. 49 of 2025)

Court of Appeal · [2025] UGCA 265 · 2025 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application before a single Justice of the Court of Appeal for a stay of execution pending appeal
Decision
Application for stay of execution dismissed; execution of the High Court decree not stayed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A single Justice of the Court of Appeal dismissed an application for a stay of execution pending appeal. Applying the Ssekikubo principles, the Court accepted that the memorandum of appeal raised triable issues and so the appeal had a likelihood of success. However, the applicant failed to establish irreparable damage: the demolition of the encroaching wall was already complete, the measurements were specified in the decree, and the applicant had substantially paid the damages awarded. The balance of convenience therefore favoured the respondent decree holder, who had already partly benefited from the decree. The application was found to lack merit and was dismissed with costs in the cause.

Outcome

Application for stay of execution dismissed; execution of the High Court decree not stayed

Facts

The respondent sued the applicant (and his wife) in the High Court for trespass to land comprised in Kyadondo Block 262 Plot 1190, seeking removal of gates blocking an access road. Judgment was entered for the respondent. The applicant filed a notice of appeal and memorandum of appeal (Civil Appeal No. 1061 of 2023), challenging the trial Judge's evaluation of evidence, findings of trespass, the order to contribute to a drainage channel, and awards of punitive and general damages. Pending appeal, execution proceeded: a warrant of demolition was issued, the perimeter wall encroaching on the respondent's land (1.64 metres at the right-hand end of the plot) was demolished, and the applicant faced arrest and detention in civil prison. The applicant's wife had separately agreed with the respondent and paid money toward the demolition, and the applicant had substantially paid the damages awarded. The applicant's earlier stay application to the High Court was dismissed.

Issues

  1. Whether the intended appeal has a likelihood of success.
  2. Whether the applicant would suffer irreparable damage or have the appeal rendered nugatory if a stay of execution is not granted.
  3. Where the balance of convenience lies as between the applicant and the respondent decree holder.
  4. Whether the application for a stay of execution was instituted without unreasonable delay.

Orders

  • The application is dismissed.
  • Costs in the cause.

Rules and key headnotes

Civil Procedure — Stay of Execution Pending Appeal — Governing Conditions
An application for a stay of execution pending appeal must establish that the appeal has a likelihood of success or a prima facie right of appeal, that the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is refused, and, failing those, where the balance of convenience lies, together with proof that the application was instituted without delay.
Civil Procedure — Stay of Execution — Likelihood of Success — Assessment Confined to Grounds of Appeal
In assessing the likelihood of success of an appeal on a stay application, the court looks only at the grounds enumerated in the memorandum of appeal to determine whether triable issues arise, without considering the merits of the appeal itself.
Civil Procedure — Stay of Execution — Irreparable Damage — Burden on Applicant
An applicant must prove by evidence that execution will cause irreparable loss of real worth that cannot be undone or atoned for in damages; where the act complained of (such as demolition) is already complete and the applicant has substantially paid the decretal sum, no irreparable damage is established and a stay will be refused.
Civil Procedure — Stay of Execution — Balance of Convenience — Reconciliation of Competing Rights
In balancing convenience the court reconciles the appellant's right not to have a successful appeal rendered nugatory against the decree holder's right to the full benefit of the decree; where the decree has been substantially satisfied, the balance of convenience favours the decree holder.

Legislation cited (7)

Cases cited (10)

  • Lawrence Musiitwa Kyazze vs Eunice Busingye, SCCA No 1990
  • Hon. Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 6 of 2013)
  • Dr. Ahmed Muhammed Kisule v Greenland Bank (Miscellaneous Application No. 7 of 2010)
  • Francis Hansio Micars v Nuwa Walakira (Civil Appeal No. 9 of 1990)
  • Wilson v Church (1879) 12 Ch. D 454
  • Kyambogo University v Prof Isaiah Omolo Ndiege (Civil Application No. 341 of 2013)
  • Haji Ali Cheboi v Kiroko Mesulamu (Miscellaneous Civil Application No. 105 of 2014)
  • Absalom Dova vs Tarbo Transporters [2013] eKLR
  • Wilson Mukiibi v James Semusambwa (Civil Appeal No. 9 of 2003)
  • American Cyanamid Co Ltd v Ethicon Ltd [1975] AC 396

Full judgment

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

Kiweewa Shaban v Mulondo Nasur (Civil Application No. 49 of 2025) [2025] UGCA 265 (8 August 2025)
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.