Wakilii

Mayanja v The Registered Trustrees of Uganda Muslim Supreme Council (Miscellaneous Application 38 of 2023)

High Court · [2023] UGHC 295 · 2023 Application Granted 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 Land Civil Suit No. 018 of 2019
Decision
Stay of execution granted pending determination of the intended appeal in the Court of Appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the applicant satisfied the conditions for stay of execution pending appeal under Order 43 rule 4(3) of the Civil Procedure Rules. The court found that the applicant would suffer substantial loss if the stay was not granted, the application was made without unreasonable delay, and the intended appeal raised genuine legal issues that were not frivolous. The court further held that where representatives of the successful party attempted to execute the decree without following proper procedures, such irregular execution should not be allowed to defeat the statutory right of appeal. Stay of execution granted without requiring security for due performance given the circumstances and likelihood of success of the intended appeal.

Outcome

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

Facts

The applicant was the defendant in Land Civil Suit No. 18 of 2019 before the High Court at Fort Portal, wherein the court declared the respondent the lawful owner of land comprised in Burahya Block 106 Plot 13 at Bukwali, but found that the semi-permanent house on the suit land and the enclosure of the homestead belonged to the estate of the late Uthman Aligawesa and that the applicant had a right to occupy the homestead and access the main road. Dissatisfied with the judgment delivered on 31 March 2023, the applicant filed a notice of appeal on 4 April 2023. On 28 April 2023, representatives of the respondent descended on the suit land and cut down the banana plantation and crops, destroyed the eucalyptus trees forming the boundary, destroyed a pit latrine, fenced off the applicant's homestead, and attempted to block the access road without following proper execution procedures. The applicant filed this application on 5 May 2023 seeking stay of execution pending the determination of the intended appeal in the Court of Appeal.

Issues

  1. Whether the applicant satisfied the conditions for stay of execution pending appeal under Order 43 rule 4(3) of the Civil Procedure Rules.
  2. Whether the applicant demonstrated that substantial loss may result unless a stay order is granted.
  3. Whether the application was made without unreasonable delay.
  4. Whether the applicant must furnish security for due performance of the decree.
  5. Whether there is a serious or imminent threat of execution rendering the appeal nugatory.
  6. Whether the intended appeal has a likelihood of success.

Orders

  • The execution of orders in the judgement decree in Land Civil Suit No. 018 of 2019 is stayed pending the determination of the appeal.
  • The status quo prevailing at the time of filing this application should be maintained to avoid bloodshed.
  • Each party shall bear its own costs of this application.

Rules and key headnotes

Stay of Execution Pending Appeal — Conditions under Order 43 rule 4(3) of the Civil Procedure Rules
The conditions that the court should consider before allowing an application to stay execution under Order 43 rule 4(3) of the Civil Procedure Rules are: (i) that substantial loss may result to the applicant unless the order is made; (ii) that the application has been made without unreasonable delay; (iii) that security has been given by the applicant for due performance of the decree as may ultimately be binding upon him or her; and (iv) that the appeal has a likelihood of success.
Stay of Execution — Rationale for Preserving Status Quo Pending Appeal
An application for stay of execution pending appeal is designed to preserve the subject matter in dispute so that the right of the appellant who is exercising his or her undoubted right of appeal is safeguarded and the appeal, if successful, is not rendered nugatory.
Stay of Execution — Expanded Conditions from Court of Appeal Jurisprudence
The Court of Appeal has expanded the conditions for stay of execution to include: (i) that the applicant must prove that there is a serious or imminent threat of execution of the decree or order and if the application is not granted, the appeal will be rendered nugatory; (ii) that the application is not frivolous and has a likelihood of success; and (iii) that refusal to grant the stay would inflict more hardship than it would avoid.
Stay of Execution — Meaning of 'Substantial Loss'
The phrase 'substantial loss' does not represent any particular amount or size and cannot be qualified by any particular mathematical formula. It refers to any loss great or small, of real worth or value as distinguished from loss that is nominal.
Stay of Execution — Likelihood of Success Test
In determining whether an intended appeal has a likelihood of success for purposes of a stay of execution application, the court need only be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried. The court should not determine the merits of the grounds of appeal, as that is the jurisdiction of the appellate court.
Stay of Execution — Security for Due Performance — Discretionary Nature
The decision whether to order security for due performance of a decree must be made according to the circumstances of each particular case and in consonance with the probability of success of the appeal. The legal provisions on security were never intended to fetter the right of appeal but were intended to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals.
Execution — Condemnation of Irregular Execution without Following Proper Procedures
Courts of law will not sanction irregular execution of decrees effected without following proper procedures. It would be unwise to defeat a statutory right of appeal by, for example, demolishing the subject matter of a suit so that the appeal is rendered nugatory. Stay may be necessary when it comes to the notice of any court that an alleged fraud has been practised upon it in effecting its decree or when the court's action is in doubt through want of jurisdiction.

Legislation cited (5)

Cases cited (15)

  • John Baptist Kawanga v Namyalo Kevin and Ssemakula Lawrence (Miscellaneous Application No. 51 of 2021)
  • Kyambogo University v Prof. Isaiah Ndege (Court of Appeal No. 341 of 2013)
  • Biryabarema Deogratious v Kyarisima Mildred (Miscellaneous Application No. 037 of 2022)
  • Lawrence Musitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Mukula International v His Eminence Cardinal Nsubuga and Another (1982) HCB 11
  • Wilson v Church (1879) 12 Ch D 454
  • Global Capital Save 2004 Ltd and Another v Alice Okiror and Another (High Court Miscellaneous Application No. 485 of 2012)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Francis M Micah v Nuwa Walakira (1992-93) HCB 88
  • Hon. Theodore Ssekikubo and Others v Attorney General and Another (Constitutional Application No. 06 of 2013)
  • Kyambogo University v Professor Isaiah Omolo Ndiege (Court of Appeal No. 341 of 2013)
  • National Enterprise Corporation v Mukisa Foods (High Court Miscellaneous Application No. 7 of 1998)
  • Tropical Commodities Supplies Ltd and 2 Others v International Credit Bank (in Liquidation) (2004) 2 EA 333
  • GAPCO Uganda Ltd v Kawesa and Another (Miscellaneous Application No. 25 of 2013)
  • Francis Hansio Micar v Nuwa Walakira (Civil Application No. 9 of 1990)

Full judgment

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

Mayanja v The Registered Trustrees of Uganda Muslim Supreme Council (Miscellaneous Application 38 of 2023) [2023] UGHC 295 (29 September 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.