Wakilii

Mashate and Another v Dhalval Devaby Kumar (Miscellaneous Application 3845 of 2023)

High Court · [2024] UGHCLD 45 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of High Court order pending appeal to Court of Appeal
Decision
Application for stay of execution dismissed; applicants to comply with order for security for costs or face dismissal of main suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed an application for stay of execution of an order for security for costs pending appeal. The applicants failed to satisfy essential requirements: the appeal lacked a realistic likelihood of success as it raised issues for determination in the main suit not yet heard on merits; no substantial loss would result as the order was for security for costs not execution for eviction; no security for due performance of the order was offered; and the balance of convenience favoured the respondent.

Outcome

Application for stay of execution dismissed; applicants to comply with order for security for costs or face dismissal of main suit

Facts

The applicants filed Civil Suit No. 597 of 2021 claiming that a land transaction was a disguised mortgage. In Miscellaneous Application No. 3028 of 2023, the respondent (3rd defendant in the main suit) successfully applied for security for costs, and the court ordered the applicants to furnish UGX 400,000,000 within 60 days. The applicants filed a notice of appeal to the Court of Appeal (Civil Appeal No. 617 of 2023) and then sought stay of execution of the security for costs order. They claimed threat of eviction from their residential home on the suit property. The court noted that the order was for security for costs, not eviction, and that the effect of non-payment would be dismissal of the suit under Order 26 rule 2, not execution proceedings.

Issues

  1. Whether the applicants have met the conditions for grant of an order for stay of execution against the Ruling and Orders of the court in Miscellaneous Application No. 3028 of 2023

Orders

  • This application is dismissed.
  • HCMA No. 3846 of 2023 for interim stay of execution is equally dismissed.
  • Costs shall be in the main cause.

Rules and key headnotes

Stay of Execution — Conditions for Grant — Test of Prima Facie Case
To succeed in an application for stay of execution pending appeal, an applicant must satisfy six conditions: (1) a notice of appeal has been filed; (2) the application has been made without unreasonable delay; (3) the appeal has a likelihood of success and is not frivolous; (4) the appeal would be rendered nugatory if stay is not granted; (5) there is serious or imminent threat of execution; and (6) security for due performance of the decree or order has been given.
Stay of Execution — Likelihood of Success — Issues for Main Suit Cannot Be Determined on Interlocutory Appeal
Where the grounds of appeal raise issues relating to the merits of the main suit that has not yet been heard, and the ruling appealed from dealt only with an interlocutory matter such as security for costs, it is not possible to determine whether there is an arguable case on appeal because the trial court has not had an opportunity to evaluate evidence and determine those issues.
Security for Costs — Effect of Non-Payment — Dismissal Not Execution
An order for security for costs under Order 26 of the Civil Procedure Rules does not give rise to execution proceedings. The effect of failure to furnish security for costs within the time fixed is dismissal of the suit under Order 26 rule 2, not taxation and execution. Execution cannot arise until the conclusion of the main suit when costs are taxed.
Stay of Execution — Security for Due Performance — Mandatory Requirement
No order for stay of execution shall be made unless the court is satisfied that security has been given by the applicant for the due performance of the decree or order as may ultimately be binding upon him or her, in accordance with Order 43 rule 4(3)(c) of the Civil Procedure Rules. Failure to offer security for due performance is fatal to an application for stay.

Legislation cited (6)

Cases cited (6)

  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Theodore Sekikubo and Others v Attorney General and Others (Supreme Court Miscellaneous Application No. 03 of 2014)
  • Formula Feeds Ltd and 3 Others v KCB Bank Ltd (High Court Miscellaneous Application No. 1647 of 2022)
  • Commissioner Customs Uganda Revenue Authority v Kayimba (Court of Appeal No. 62 of 2014)
  • Kyambogo University v Prof Isaiah Omolo Ndiege (Court of Appeal Miscellaneous Civil Application No. 341 of 2013)
  • John Baptist Kawanga v Namyalo Kevina and Another (High Court Miscellaneous Application No. 12 of 2017)

Full judgment

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

Mashate_and_Another_v_Dhalval_Devaby_Kumar_(Miscellaneous_Application_3845_of_2023)_[2024]_UGHCLD_45_(15_February_2024)
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.