Wakilii

Makumbi v Ssemango and Another (Miscellaneous Application No. 535 of 2022)

High Court · [2022] UGHCLD 127 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending determination of Civil Appeal No. 184 of 2021 arising from judgment in Civil Suit No. 794 of 2010
Decision
Execution of judgment in Civil Suit No. 794 of 2010 stayed pending determination of Civil Appeal No. 184 of 2021, upon payment of 50% of decreed costs as security

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted the application for stay of execution pending determination of Civil Appeal No. 184 of 2021. The applicant satisfied all five requirements for stay: a notice of appeal was filed; execution would cause substantial loss including irreparable damage to the applicant and family beneficiaries who derive income from the suit property; the application was made without unreasonable delay; there was an eminent threat of execution; and the appeal raised serious questions of law and fact giving it a likelihood of success. The court ordered payment of 50% of the decreed costs as security.

Outcome

Execution of judgment in Civil Suit No. 794 of 2010 stayed pending determination of Civil Appeal No. 184 of 2021, upon payment of 50% of decreed costs as security

Facts

The applicant instituted Civil Suit No. 794 of 2010 against the respondents seeking a declaration that the estate of the late Israel Nyanzi was the lawful occupant of the suit land. The suit was dismissed with orders for vacant possession and demolition of the applicant's house. The applicant filed Civil Appeal No. 184 of 2021. The respondents commenced execution proceedings via Execution Miscellaneous Application No. 20 of 2022. The applicant was served with a notice to show cause why execution should not issue and was subsequently arrested on warrant for non-payment of decreed costs totalling UGX 60,000,000. An arrest warrant was issued on 19 May 2022 and the applicant was remanded to civil prison on 20 May 2022. The suit land is developed with a house from which beneficiaries of the deceased's estate derive rental income.

Issues

  1. Whether the applicant satisfied the conditions for a stay of execution pending determination of his appeal.

Orders

  • Application for stay of execution granted.
  • 50% of the costs as decreed shall be paid as security for costs.
  • Each party to meet its own costs of the application.

Rules and key headnotes

Stay of Execution — Principles for Grant — Notice of Appeal as Sufficient Basis
A notice of appeal is a sufficient expression of an intention to file an appeal and such action is sufficient to form the basis for grant of orders of stay in appropriate cases.
Stay of Execution — Five Conditions for Grant
For a stay of execution to be granted, an applicant must satisfy five conditions: (a) the applicant must show that he lodged a notice of appeal; (b) that substantial loss may result to the applicant unless the stay of execution is granted; (c) that the application has been made without unreasonable delay; (d) that the applicant has given security for due performance of the decree or order as may ultimately be binding upon him; and (e) that the appeal has a likelihood of success.
Stay of Execution — Substantial Loss — Meaning and Scope
Substantial loss does not represent any particular amount or size and cannot be quantified by any particular mathematical formula. It refers to any loss, great or small, that is of real worth or value as distinguished from loss without a value or that which is merely nominal.
Stay of Execution — Security for Costs — Balancing Exercise
A balance must be drawn between on one hand the delay and inconvenience likely to be suffered by the successful party in accessing the fruits of the judgment and on the other hand, the exercise of a party's right of appeal which ought not be prohibited by an excessive amount of security for costs.
Stay of Execution — Likelihood of Success — Threshold Required
An applicant for stay of execution must demonstrate that the appeal is not frivolous and has a likelihood of success, but it is not the place of the court to express its opinion as to whether the appeal is likely to succeed or not. The court must be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried.

Legislation cited (4)

Cases cited (11)

  • Attorney General v The East African Law Society & Another (EACA Application No. 1 of 2013)
  • Wilson as church (1879) Vol. 12 CH D 454
  • Global Capital Save 2004 Ltd & Another v Alice Okiira & Another (HC IVA No. 403 of 2012)
  • Kgazze v Businge (Supreme Court Civil Application No. 18 of 1990)
  • Ssekikubo & Others v Attorney General & Others (Constitutional Application No. 3 of 2014)
  • Kisaanzi v Malingi (HCMA No. 467 of 2013)
  • Tropical Commodities Suppliers Ltd & Others v International Credit Bank Ltd (In Liquidation) (2004) 2 EA 331
  • Singh v Rundo Coffee Estates Ltd [1966] EA 263
  • John Murray (Publishers) Ltd v Senkindu (Civil Suit No. 1018 of 1997)
  • GAPCO Uganda Ltd v Kaweeso & Another (MA No. 259 of 2013) [2013] UGHCLD 41
  • American Cyanamid v Ethicon [1975] ALL ER 504

Full judgment

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

Makumbi_v_Ssemango_and_Another_(Miscellaneous_Application_No._535_of_2022)_[2022]_UGHCLD_127_(6_July_2022)
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.