Wakilii

Mbusa Okoth v Bafiriwala (Miscellaneous Application 1025 of 2022)

High Court · [2023] UGHCFD 14 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of decree and orders arising from dismissed appeal in divorce proceedings
Decision
Application for stay of execution dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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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 an application for stay of execution of a divorce decree and related orders. The applicant failed to demonstrate substantial loss if stay was not granted, did not attach a draft memorandum of appeal to show likelihood of success, and failed to furnish security for due performance of the decree as required under Order 43 rule 4(3) of the Civil Procedure Rules.

Outcome

Application for stay of execution dismissed

Facts

The applicant was respondent in divorce proceedings (Divorce Cause No. 17 of 2017) decided in her absence in the Chief Magistrate's Court, resulting in a decree absolute on 19 June 2019 with orders for joint custody, maintenance, and property distribution. Her appeal to the High Court (Civil Appeal No. 13 of 2021) was dismissed on 15 September 2022. She then sought stay of execution of the decree and orders to pursue a further appeal, claiming the respondent had started alienating properties and that her appeal had high chances of success. The application was filed 32 days after the judgment dismissing her appeal.

Issues

  1. Whether there are sufficient grounds to grant stay of execution of the decree and orders in Civil Appeal No. 13 of 2021 and Divorce Cause No. 17 of 2017.

Orders

  • Application dismissed.
  • Each party to bear their own costs.

Rules and key headnotes

Stay of Execution — Requirements under Order 43 Rule 4(3)
For a stay of execution to be granted under Order 43 rule 4(3) of the Civil Procedure Rules, the applicant must satisfy three cumulative conditions: that substantial loss may result unless the stay is made; that the application has been made without unreasonable delay; and that security has been given for due performance of the decree as may ultimately be binding upon the applicant.
Stay of Execution — Proof of Substantial Loss
An applicant seeking stay of execution must adduce cogent evidence to demonstrate that substantial loss will be incurred if the stay is not granted; mere allegation without supporting evidence is insufficient.
Stay of Execution — Likelihood of Success on Appeal
Where an applicant fails to attach a draft memorandum of appeal to an application for stay of execution, the court cannot determine whether the intended appeal raises issues which merit consideration and cannot assess the likelihood of success.
Stay of Execution — Security for Due Performance
Security for due performance of the decree has been interpreted to mean the entire decretal sum and is intended to protect the judgment creditor in the event that the appeal is unsuccessful; failure to furnish such security or allude to it in the supporting affidavit defeats an application for stay of execution.

Legislation cited (8)

Cases cited (7)

  • Themi Sebalu v Peter Sematimba & 2 Others (Civil Application No. 15 of 2014)
  • Akankwasa Damian v Uganda (Constitutional Application Nos. 7 and 9 of 2011)
  • Muhammed Kisuule v Greenland Bank (In Liquidation) (Civil Application No. 07 of 2010)
  • Lawrence Musiitwa Kyazze v Eunice Businge (Civil Application No. 18 of 1990)
  • Ssekikubo v Attorney General & Others (Constitutional Application No. 3 of 2014)
  • Osman Kassim v Century Bottling Company Ltd (Civil Appeal No. 34 of 2019)
  • Gashumba v Nkudiye (Civil Application No. 24 of 2005)

Full judgment

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

Mbusa Okoth v Bafiriwala (Miscellaneous Application 1025 of 2022) [2023] UGHCFD 14 (8 May 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.