Wakilii

Lwamatarama & 7 Others v Kaganda & 2 Others (Miscellaneous Application 3 of 2023)

High Court · [2023] UGHC 361 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal to the Court of Appeal, arising from High Court Civil Appeal No. 77 of 2017
Decision
Stay of execution granted pending determination of appeal in the Court of Appeal

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 to the Court of Appeal. The court admitted the affidavit in reply filed out of time and the non-commissioned annexes in the interest of justice. The applicants satisfied all requirements for stay: they filed a notice of appeal and memorandum of appeal; they would suffer substantial loss through eviction from land providing shelter and livelihood; the delay in bringing the application was attributable to previous counsel's negligence; there was an imminent threat of execution; the appeal raised bona fide triable issues; and security was not required given the applicants' status as peasant farmers.

Outcome

Stay of execution granted pending determination of appeal in the Court of Appeal

Facts

The applicants were sued in Civil Suit No. 17 of 2006 in the Chief Magistrate's Court of Masaka at Sembabule for trespass on Ranch 18A/LRV 3562 Folio 24. The trial court dismissed the suit, finding the applicants were bona fide occupants. On appeal in HCCA No. 77 of 2017, the High Court reversed the decision, found the applicants were not bona fide occupants, and issued eviction and compensation orders. The applicants instructed M/S Lubega and Buzibira Co. Advocates to file an appeal to the Court of Appeal. The lawyers assured the applicants they had filed the appeal. In December 2022, the applicants were served with a notice to show cause why execution should not issue and discovered their lawyers had never filed the appeal. The applicants engaged new lawyers, M/S BKA Advocates, who filed the appeal (COACA No. 527 of 2022) and an application for validation. The applicants then brought this application for stay of execution.

Issues

  1. Whether the affidavit in reply filed out of time should be struck out.
  2. Whether the annexes to the affidavit in reply not commissioned in compliance with Rule 8 of the Schedule to the Commissioner of Oaths Act should be struck out.
  3. Whether the applicants satisfied the requirements for a grant of a stay of execution pending appeal.

Orders

  • A stay of execution is hereby issued restraining the Respondents, their servants/Agents or any person acting on their behalf from executing and or enforcing the judgement, decree and orders of this Honorable Court in HCCA No.77 of 2017 pending the disposal of the Applicant's Appeal in the Court of Appeal.
  • The costs of this Application shall abide by the outcome of the Appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution — Requirements for Grant
To obtain a stay of execution pending appeal, an applicant must satisfy the following requirements: (1) lodge a notice of appeal; (2) show that substantial loss may result if stay is not granted; (3) bring the application without unreasonable delay; (4) give security for due performance of the decree or order; (5) demonstrate an imminent threat of execution; (6) show the appeal is not frivolous and has a likelihood of success; and (7) show that more hardship will be inflicted if the stay is not granted.
Civil Procedure — Affidavits — Filing Out of Time — Court's Discretion
The court has discretion under Section 96 of the Civil Procedure Act to admit an affidavit in reply filed out of time in the interest of justice, particularly where the delay is not excessive and the applicant will suffer no injustice from the admission.
Civil Procedure — Affidavits — Annexes — Failure to Commission
Failure to commission annexes to an affidavit does not affect the validity of the affidavit itself. Where the contents of the annexes are not in dispute, they should be admitted in the interest of justice and without undue regard to technicalities.
Civil Procedure — Stay of Execution — Substantial Loss
Substantial loss does not represent any particular amount or size and cannot be quantified by mathematical formulae. It refers to any loss, great or small, that is of real worth or value as distinguished from loss without value or that which is merely nominal. The court must consider substantial loss in light of the particular facts of each case.
Civil Procedure — Stay of Execution — Delay Attributable to Counsel Negligence
Where delay in bringing an application for stay of execution is attributable to the negligence and unprofessional conduct of previous counsel who failed to file an appeal despite assuring the client they had done so, it would be contrary to justice to visit the negligence of counsel on a litigant who was not privy to the actions of counsel.
Civil Procedure — Stay of Execution — Security for Due Performance
The requirement for security for due performance of a decree should be decided according to the circumstances of each case. The objective of the legal provisions on security was never intended to fetter the right of appeal but to ensure courts do not assist litigants to delay execution through filing vexatious and frivolous appeals. The financial status of the applicant should be put into consideration when deciding whether security should be ordered.
Civil Procedure — Execution — Imminent Threat — Meaning
Execution is a process and not an event. Execution envisages realization of the fruits of judgment which includes taxation. Service of a notice to show cause why execution should not issue and commencement of execution for costs both fall within the ambit of execution and constitute an imminent threat of execution.

Legislation cited (11)

Cases cited (13)

  • Hon. Theodore Ssekikubo and others v Attorney General and others (Supreme Court Civil Appeal No. 3 of 2014)
  • Kyambogo University v Prof. Isaiah Omollo Ndiege (Court of Appeal Miscellaneous Application No. 341 of 2013)
  • Mukesh Babubhai Shukla v Electoral Commission and another (High Court Miscellaneous Application No. 340 of 2021)
  • Namboowa Rashiida v Bavekuno Mafumu and Another (Election Appeal No. 69 of 2016)
  • Stop and See (U) Ltd v Tropical Africa Bank Ltd (High Court Miscellaneous Application No. 333 of 2010)
  • Ramagarhia Sikh Society and others v The Ramagarhia Sikh Education Society Limited and others (High Court Miscellaneous Application No. 352 of 2015)
  • Uganda Corporation Creameries Ltd and another v Reamaton Limited (Court of Appeal Civil Appeal No. 44 of 1998)
  • Tropical Commodities Suppliers Ltd and Ors Vs International Credit Bank Ltd (In Liquidation) (2004)2 EA 331
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • John Baptist Kwanga v Namyalo Kevina and another (High Court Miscellaneous Application No. 12 of 2017)
  • Amuanaun Sam v Opolot David (High Court Miscellaneous Application No. 3 of 2014)
  • Osman Kassim v Century Bottling Company Limited (Supreme Court Civil Appeal No. 35 of 2019)
  • GAPCO Uganda Ltd v Kaweesa & Another (High Court Miscellaneous Application No. 259 of 2013)

Full judgment

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Lwamatarama & 7 Others v Kaganda & 2 Others (Miscellaneous Application 3 of 2023) [2023] UGHC 361 (5 May 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.