Wakilii

Kyazze v Busingye (Civil Application No. 18 of 1990)

Supreme Court · [1990] UGSC 30 · 1990 Preliminary Objection Overruled AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the Supreme Court for a stay of execution pending appeal; preliminary objection raised in limine that no proper application had first been made to the High Court
Decision
Preliminary objection overruled; the application for a stay of execution proceeds to hearing before the Supreme Court.

Observed later treatment

Treatment recorded in citing cases followed in 22 · applied in 1 Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Good law Followed in 22 cases and applied in 1 case, with no adverse treatment recorded. Citations rising — 186 citing cases on record, 94 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

On a preliminary objection that the Supreme Court could not entertain an application for a stay of execution because no proper application had first been made to the High Court under Rule 41 of the Court of Appeal Rules, the Court held that the High Court and Supreme Court have concurrent jurisdiction, and that Rule 41 does not remove or impose a mandatory limitation upon the Court's express power to grant a stay under Rule 5(2)(b). In general an application should be made informally first to the trial judge, but the appellate court may intervene to preserve the status quo where the High Court wrongly refused or doubted jurisdiction, erred on the face of the record, or failed to act in time. The objection, taken on manifestly unsound grounds, was overruled with costs.

Outcome

Preliminary objection overruled; the application for a stay of execution proceeds to hearing before the Supreme Court.

Facts

Lawrence Kyazze lost a civil suit against Eunice Busingye in the High Court of Uganda (Civil Suit No. 893 of 1988) and was ordered to give up the suit property. He filed a notice of appeal and brought a motion to the Supreme Court seeking a stay of execution pending determination of the appeal. An earlier application of some kind had been made to the High Court but was struck out as improper, and the High Court had also refused a stay on grounds the Supreme Court regarded as erroneous. When the motion was opened, counsel for the respondent objected in limine that the Supreme Court could not entertain it because no proper application had first been made to the High Court as required by Rule 41 of the Court of Appeal Rules. A notice of appeal had in fact been lodged before the High Court refused the stay, but this was not brought to the attention of the trial judge, who consequently believed no appeal had been filed.

Issues

  1. Whether the Supreme Court can entertain an application for a stay of execution pending appeal where no proper application was first made to the High Court as required by Rule 41 of the Court of Appeal Rules.
  2. Whether, if some application was made to the High Court and refused on any ground, the Supreme Court may exercise its own jurisdiction to grant a stay.
  3. Whether, if no application was made to the High Court, the Supreme Court must forgo its jurisdiction and await the High Court's decision first.
  4. Whether Rule 41 applies to the grant of a stay of execution under the inherent jurisdiction so as to limit the Supreme Court's express power under Rule 5(2)(b).

Orders

  • Preliminary objection overruled.
  • Costs of the objection awarded against the objector (respondent).
  • Parties called upon to commence the hearing of the application for a stay of execution.

Rules and key headnotes

Civil Procedure — Stay of Execution — Concurrent Jurisdiction of Trial and Appellate Courts
The trial court and the appellate court have concurrent jurisdiction to grant a stay of execution pending appeal; Rule 41 of the Court of Appeal Rules requires that an application first be made to the court below but does not take away the jurisdiction conferred on the appellate court.
Statutory Interpretation — Scope of Rule 41 of the Court of Appeal Rules
Rule 41 was intended to govern cases where concurrent jurisdiction is provided by the municipal law of Uganda and is not a catch-all; it imposes no mandatory limitation on the Supreme Court's express power to grant a stay of execution under Rule 5(2)(b), and any ambiguity is resolved in favour of those express powers.
Civil Procedure — Stay of Execution — Practice on Application Pending Appeal
An application for a stay of execution should in general be made informally to the judge who decided the case when judgment is delivered; the appellate court may nonetheless intervene to preserve the status quo where the High Court refused or doubted its jurisdiction, made an error apparent on the record, or was unable to deal with the application in time to the prejudice of the parties.
Civil Procedure — Inherent Jurisdiction — Section 101 Civil Procedure Act
The power to grant a stay of execution under the inherent jurisdiction is preserved by Section 101 of the Civil Procedure Act, and an appeal from a decree cannot be treated as a fresh suit for the purposes of the Civil Procedure Rules.

Legislation cited (14)

Cases cited (6)

  • Cropper Vs Smith (1883) Ch. Div. 305
  • Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 448
  • Wilson v Church (1879) 11 Ch D 576
  • Wilson v Church (No 2) (1879) 12 Ch D 454
  • Maguyi & Co. Advocates v National Insurance Corporation (Civil Appeal No. 13 of 1984)
  • Ujagar Singh Vs Sundh Co-operative ... (1966) E.A. 251

Cases citing this judgment (30)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Kyazze v Busingye (Civil Application No. 18 of 1990) [1990] UGSC 30 (12 February 1990)
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.