Wakilii

Lugemwa v Nankya and 4 Others (Administrators of the estate of the late Kiyaga) (Miscellaneous Application No. 49 of 2020)

High Court · [2021] UGHCCD 244 · 2021 Application Granted 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 from High Court ruling dismissing application for readmission of appeal
Decision
Stay of execution granted conditional upon deposit of security within 14 days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted a stay of execution pending appeal, finding that the applicant satisfied the conditions under Order 43 Rule 4(3) of the Civil Procedure Rules. The court held that the applicant would suffer substantial loss through eviction, the appeal would be rendered nugatory if execution proceeded, and the application was filed without undue delay. The court exercised its discretion to require security for due performance, ordering the applicant to deposit UGX 23,000,000 within 14 days as a condition of the stay.

Outcome

Stay of execution granted conditional upon deposit of security within 14 days

Facts

The applicant claimed ownership of land he purchased in 1981, taking possession in 1984 when he found the late Peter Kiyaga in possession. The late Kiyaga had acquired the same land in 1984 from another seller and took possession until 2002, when the applicant illegally entered based on an LC II Court order. Civil Suit No. 117 of 2009 was determined in favour of the late Kiyaga, who was declared lawful owner and the applicant declared a trespasser. The applicant's appeal (Civil Appeal No. 79 of 2015) was dismissed for non-appearance in 2017. His application for readmission of the appeal was dismissed on 13 July 2020. The applicant then lodged a notice of appeal to the Court of Appeal and filed this application for stay of execution 17 days later. During taxation proceedings, the applicant had agreed to vacate but subsequently changed position.

Issues

  1. Whether the applicant satisfied the conditions for a stay of execution pending appeal under Order 43 Rule 4(3) of the Civil Procedure Rules.
  2. Whether the applicant would suffer substantial loss if execution is not stayed.
  3. Whether the intended appeal would be rendered nugatory if a stay is not granted.
  4. Whether the application was filed without undue delay.
  5. What amount of security for due performance of the decree should be required.

Orders

  • Application allowed.
  • Execution of the judgments, orders and decree in Miscellaneous Application No. 40 of 2019 and Land Civil Suit No. 117 of 2009 stayed pending determination of the appeal.
  • Applicant to deposit UGX 23,000,000 in court as security for due performance within 14 days from the date of this order.
  • In default of payment within 14 days, this order shall lapse and the respondents shall be at liberty to proceed with execution of the decree in Civil Suit No. 117 of 2009.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant — Order 43 Rule 4(3) CPR
An applicant seeking a stay of execution pending appeal must establish: (1) that the appeal has a likelihood of success or a prima facie case; (2) that the applicant will suffer irreparable damage or the appeal will be rendered nugatory if a stay is not granted; (3) if conditions 1 and 2 are not established, where the balance of convenience lies; and (4) that the application was instituted without delay.
Civil Procedure — Stay of Execution — Substantial Loss — Meaning and Assessment
Substantial loss does not represent any particular amount or size and cannot be quantified by any particular mathematical formula. It is determined by the circumstances of each case. An applicant in possession of land who faces eviction may suffer substantial loss even where the underlying decree was properly obtained.
Civil Procedure — Stay of Execution — Security for Due Performance — Court's Discretion
The court has discretion to grant a stay of execution with or without security for due performance. The requirement for security should not be interpreted to stifle a party's right of appeal. However, where a respondent is being affected and execution delayed, the court may exercise its discretion to require security to protect the respondent and ensure the appeal is prosecuted expeditiously.
Civil Procedure — Stay of Execution — Rendering Appeal Nugatory — Ownership Decrees
Where a decree concerns ownership of property and execution would result in eviction before an appeal is determined on its merits, proceeding with execution would render the appeal nugatory. The status quo should be maintained pending determination of the appeal to avoid this outcome.

Legislation cited (5)

Cases cited (6)

  • Ssekikuubo v Attorney General (Constitutional Application No. 6 of 2013)
  • Kyambogo University v Ndiege (Court of Appeal Miscellaneous Civil Application No. 341 of 2013)
  • Tropical Commodities Suppliers Ltd & Ors V. Credit Bank (in liquidation) (2004) 2 EA 331
  • DFCU Bank Ltd v Nakate (Court of Appeal Civil Appeal No. 29 of 2003)
  • Kyazze v Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Brown v Dean [1910] AC 373, [1909] 2 KB 573

Full judgment

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Lugemwa v Nankya and 4 Others (Administrators of the estate of the late Kiyaga) (Miscellaneous Application No. 49 of 2020) [2021] UGHCCD 244 (10 March 2021)
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.