Wakilii

Mashate Francis and Mash Investments Ltd v Dhalval Devabg Kumar Barrot (Miscellaneous Application 3845 of 2023)

High Court · [2024] UGHCLD 348 · 2024 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 ruling ordering security for costs
Decision
Application for stay of execution dismissed; underlying ruling ordering security for costs remains in force

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An application for stay of execution pending appeal was dismissed where the applicants failed to satisfy the essential requirements. The court held that the applicants had not demonstrated that the appeal had a realistic likelihood of success, had not shown that the appeal would be rendered nugatory, had not provided security for due performance of the order as required by Order 43 rule 4(3)(c) of the Civil Procedure Rules, and had misinterpreted the court's earlier order for security for costs as posing a threat of eviction when the order related only to payment of security for costs under Order 26.

Outcome

Application for stay of execution dismissed; underlying ruling ordering security for costs remains in force

Facts

The applicants filed Civil Suit No. 597 of 2021 claiming that land transactions with the 1st defendant were mortgages disguised as sales. The 3rd defendant (respondent in this application) filed Miscellaneous Application No. 3028 of 2023 seeking security for costs, which was granted by the High Court on 11 December 2023 ordering the applicants to pay UGX 400,000,000 as security for costs within 60 days. The applicants filed a notice of appeal and Civil Appeal No. 617 of 2023 to the Court of Appeal. On 20 December 2023, they filed this application seeking stay of execution of the security for costs order, claiming a serious threat of eviction from their residential home on Plot 2 Lugogo Channel Road. The respondent denied any threat of eviction and stated that the security for costs order did not relate to eviction but only to payment of security to cover the respondent's costs in defending the main suit.

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 High Court ordering security for costs.

Orders

  • Application dismissed.
  • HCMA No. 3846 of 2023 for interim stay of execution dismissed.
  • Costs shall be in the main cause.

Rules and key headnotes

Stay of Execution Pending Appeal — Conditions to be Satisfied
In an application for stay of execution pending appeal, the applicant must show that a notice of appeal has been lodged, the appeal may have a likelihood of success, the application has been made without unreasonable delay, and if the stay were not granted substantial loss may result to the applicant.
Stay of Execution — Likelihood of Success on Appeal
The court must be satisfied that the prospects of the appeal succeeding are not remote but that there is a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success. An appeal is considered frivolous if prima facie the grounds intended to be raised are without any reasonable basis in law or equity and cannot be supported by a good faith argument.
Security for Due Performance of Order as Condition for Stay
No order for stay of execution shall be made unless the court making it 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, as required by Order 43 rule 4(3)(c) of the Civil Procedure Rules. Failure to provide such security is fatal to an application for stay of execution.
Security for Costs — Effect of Non-Payment
Where an order for security for costs is made under Order 26 of the Civil Procedure Rules, the effect of failure to furnish security within the time fixed is dismissal of the suit unless the plaintiff is permitted to withdraw, not execution proceedings. Execution cannot arise at the stage of an order for security for costs since taxation proceedings will be conducted at the end of the main suit.
Stay of Execution — Appeal Rendered Nugatory
Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen, will be reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved, or whether it is in the public interest to grant a stay. There must be proof that refusal to grant a stay would inflict more hardship than it would avoid.

Legislation cited (9)

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 Civil 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_Francis_and_Mash_Investments_Ltd_v_Dhalval_Devabg_Kumar_Barrot_(Miscellaneous_Application_3845_of_2023)_[2024]_UGHCLD_348_(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.