Krone Uganda Ltd v Kerileee Investiment Ltd (Misc.Civil Application No. 66 & 67 of 2020)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The single Justice held that the applicant's failure to seek leave to appeal within the statutory time was a mistake of previous counsel that should not be visited on an innocent litigant, particularly as an application for leave (Civil Application No. 63 of 2020) was pending. The preliminary objection based on absence of a right of appeal was overruled. Applying the principles from Ssekikubo, the Court found the applicant had lodged a notice of appeal, faced irreparable damage through threatened attachment and sale of its wolfram processing plant, and that the appeal would be rendered nugatory. The application for stay of execution was allowed pending determination of the leave application.

Outcome

Stay of execution granted pending determination of Civil Application No. 63 of 2020 for leave to appeal

Facts

The respondent contracted the applicant to supply 60,000 tons of wolfram ore, with payment made in advance. The respondent advanced USD 450,000 for 50 tons to be exported to the United Kingdom, requiring the applicant to furnish shipping documents. The applicant delivered the consignment without support documents. The respondent sued for specific performance (HCCS No. 365 of 2015). The applicant brought third party proceedings against the Attorney General and the Commissioner of the Department of Geological Survey and Mining. The parties entered a consent judgment providing that the decretal sum of USD 975,750 would be met by the Attorney General and the Commissioner. When the Attorney General refused to pay, the respondent commenced execution against the applicant. The High Court ordered the applicant to deposit an irrevocable bank guarantee of 60% of the decretal sum. The applicant sought a stay of execution, contending the consent judgment was procured under duress and that its property, including a wolfram processing plant, was threatened with attachment and sale.

Issues

1. Whether the applicant had a right of appeal such that the application for stay of execution could be entertained, given that the order arose under O.22 rule 23(3) of the Civil Procedure Rules and required leave to appeal.
2. Whether the applicant satisfied the conditions for a grant of a stay of execution pending appeal.

Orders

• The preliminary objection is overruled.
• The application for stay of execution of the orders of the High Court in Miscellaneous Application No. 427 of 2019 is allowed.
• Execution is stayed pending the determination of Civil Application No. 63 of 2020 for leave to appeal or until further orders of this Court.
• Each party is to bear its own costs of this application.

Rules and key headnotes

Legislation cited (9)

• Judicature (Court of Appeal Rules) Directions rule 6(2)(a)
• Judicature (Court of Appeal Rules) Directions rule 6(2)(b)
• Judicature (Court of Appeal Rules) Directions rule 42(1)
• Judicature (Court of Appeal Rules) Directions rule 42(2)
• Judicature (Court of Appeal Rules) Directions rule 40(2)(a) and (b)
• Judicature (Court of Appeal Rules) Directions rule 76
• Civil Procedure Rules O.22 rule 23(3)
• Civil Procedure Rules O.44 rule 1(3)
• Civil Procedure Rules O.44 rules 2 and 3

Cases cited (5)

• Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 6 of 2013)
• Gashumba Maniraguha v Sam Nkudiye (Civil Application No. 24 of 2015)
• Kisule v Greenland Bank (Civil Appeal No. 11 of 2020)
• Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
• Mutaba Barisa Kweterana Ltd v Bazirakye Yeremiya and Another (Civil Appeal No. 158 of 2014)

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