Wakilii

M and D Timber Merchants and Transporters v Hwan Sung Limited and Another (Miscellaneous Application No. 1767 of 2022)

High Court · [2023] UGHCLD 93 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal from High Court judgment in HCCS No. 0409 of 2013
Decision
Application for stay of execution dismissed; execution of judgment in HCCS No. 0409 of 2013 may proceed

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) 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.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. 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

The High Court dismissed the application for stay of execution. The court held that although the applicant had filed an appeal, it failed to satisfy the essential principles for granting a stay: the applicant delayed unreasonably in filing the application, had a history of not honouring monetary obligations, the loss claimed was self-inflicted due to violation of earlier court orders, and the appeal was found to be frivolous with no likelihood of success. The balance of convenience favoured the respondent who had been deprived of possession for over 20 years.

Outcome

Application for stay of execution dismissed; execution of judgment in HCCS No. 0409 of 2013 may proceed

Facts

The applicant sought a stay of execution of a High Court judgment in HCCS No. 0409 of 2013 pending determination of its appeal. The applicant claimed to have acquired interest in the suit land in 1989 from Hussein Abdi, who had been allocated the land by Kampala City Council. Hussein Abdi's lease was extended several times, with the last extension expiring on 29 November 1990. On 30 March 1989, before the lease expired, Hussein Abdi sought consent to transfer the land to the applicant. KCC granted consent on 18 July 1989 subject to payment of transfer fees of UGX 1,000,000 within 30 days plus fresh premium and ground rent. The applicant failed to pay within 30 days and only attempted payment 6 years later, after the land had been allocated to the 1st respondent. The applicant continued construction on the land despite a temporary injunction issued in 2005 restraining it from carrying out developments. The 1st respondent was found to be the rightful owner in the main suit. The applicant filed its notice of appeal and memorandum of appeal on 20 September 2022, almost 6 months after judgment was delivered on 1 April 2022, and only five days after being served with an eviction notice. The application for stay was filed on 11 October 2022.

Issues

  1. Whether the application for stay of execution was brought under the correct procedure.
  2. Whether the applicant satisfied the principles for granting a stay of execution pending appeal.

Orders

  • Application dismissed.
  • Costs awarded to the 1st Respondent.

Rules and key headnotes

Civil Procedure — Stay of Execution — Procedural Requirements — Application by Chamber Summons under Order 22 Rule 26
Order 22 Rule 26 of the Civil Procedure Rules applies to situations where there is a pending suit brought by an unsuccessful party against a successful party in the earlier suit whose decree is to be executed. However, procedural defects can be cured under Article 126(2)(e) of the Constitution, and where an application is also brought under section 33 of the Judicature Act and section 98 of the Civil Procedure Act, the court has wide powers to overlook a procedural mishap in favour of administering substantive justice.
Civil Procedure — Stay of Execution — Principles — Substantial Loss
When considering whether substantial loss would result if a stay of execution is not granted, the court must balance the interest of the applicant against the interest of the respondent who seeks to enjoy the fruits of judgment. Loss that is self-inflicted as a result of the applicant's blatant disregard of court orders, or loss that is capable of being atoned for in monetary terms, does not constitute substantial loss warranting a stay of execution.
Civil Procedure — Stay of Execution — Principles — Unreasonable Delay
An application for stay of execution filed more than 6 months after judgment, and only after the applicant has been served with an eviction notice, without any explanation for the delay, constitutes unreasonable delay and militates against the grant of a stay.
Civil Procedure — Stay of Execution — Principles — Security for Due Performance
The decision whether to order security for due performance must be made in consonance with the probability of success of the appeal. Where an applicant has a history of not honouring monetary obligations levelled against it by courts of law, it is unlikely that the applicant will furnish security for due performance if ordered to do so, and this weighs against granting a stay of execution.
Civil Procedure — Stay of Execution — Principles — Likelihood of Success
An appeal is frivolous and has no likelihood of success where the trial court found that the applicant was never allocated the land in question because it failed to honour the condition of paying transfer fees within 30 days as required, and the land was subsequently allocated to another party.

Legislation cited (4)

Cases cited (8)

  • Lawrence Musiitwa Kyazze v Eunice Businge (Supreme Court Civil Appeal No. 18 of 1990)
  • Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 3 of 2014)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Civil Appeal No. 341 of 2013)
  • Kenya shell Ltd v Kibiru & Another [1986] KLR 410
  • Wilson -Vs- Church (No 2) (1879) 12ChD 454
  • Francis Drake Corporation and Another v Uganda Railways Corporation (Miscellaneous Application No. 386 of 2005)
  • Peter Mulira v Mitchell Cotts Ltd (Miscellaneous Application No. 115 of 2009)
  • RWW vs. EKW (2019) eKLR

Cases citing this judgment (1)

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

↓ Download PDF

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

M_and_D_Timber_Merchants_and_Transporters_v_Hwan_Sung_Limited_and_Another_(Miscellaneous_Application_No._1767_of_2022)_[2023]_UGHCLD_93_(14_March_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.