Miwanda Ignatius and Others v Kalule Henry Lucky and Others (Civil Application No. 110 of 2023)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court dismissed the application for a stay of execution pending appeal to the Supreme Court. Appellate jurisdiction is conferred only by statute and no automatic right of appeal lies to the Supreme Court against an interlocutory order of the Court of Appeal; the dismissal in Civil Application No. 85/2021 was such an interlocutory order. The applicants therefore had no valid notice of appeal and showed neither a likelihood of success nor a prima facie right of appeal, a weakness compounded by failure to serve the notice and the request for a record of proceedings. The balance of convenience did not favour them given prolonged failure to administer the estate. The Court declined to order security of UGX 1,000,000,000.

Outcome

Application for stay of execution dismissed with costs to the respondents

Facts

The dispute arose from the administration of the estate of the late Hellen Nanfuka Dalia. The applicants, as defendants, were the unsuccessful party in HCCS No. 573 of 2016 in the High Court Family Division. They lodged Civil Appeal No. 83 of 2021 against that judgment and, before it was heard, filed Civil Application No. 85 of 2021 seeking enlargement of time to file notices of appeal and the memorandum and record of appeal. On 21 February 2023 a panel of three Justices of Appeal dismissed that application and struck out the applicants' notices of appeal. The respondents then secured an order of execution and an eviction order. The applicants lodged a notice of appeal to the Supreme Court against the dismissal of Civil Application No. 85 of 2021 but made no further progress in filing an appeal. They then brought the present application seeking a stay of execution pending determination of that intended Supreme Court appeal.

Issues

1. Whether the applicants demonstrated a likelihood of success or a prima facie right of appeal to the Supreme Court warranting a stay of execution.
2. Whether a valid notice of appeal exists where no right of appeal lies to the Supreme Court against an interlocutory order of the Court of Appeal.
3. Whether the balance of convenience favoured granting a stay of execution.
4. Whether the applicants should be ordered to furnish security for due performance of the decree.

Orders

• The prayer for a substantive stay of execution of the orders made in Civil Application No. 85 of 2021 is declined.
• The application is dismissed with costs to the respondents.

Rules and key headnotes

Legislation cited (14)

• Judicature Act s.4
• Judicature Act s.6
• Civil Procedure Act s.78
• Constitution Article 132
• Rules of Court rule 2(2)
• Rules of Court rule 6(2)(b)
• Rules of Court rule 43(1) and (2)
• Rules of Court rule 44(1)
• Rules of Court rule 76
• Supreme Court Rules rule 41(1)
• Supreme Court Rules rule 22
• Supreme Court Rules rule 74(1)
• Supreme Court Rules rule 79(2) and (3)
• Supreme Court Rules rule 81

Cases cited (11)

• Hon. Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 6 of 2013)
• Dr. Ahmed Muhammed Kisuule v Greenland Bank (In Liquidation) (SC Civil Application No. 7 of 2010)
• Dr. Kasirivu Atwooki and Others v Grace Bamurangye Bororoza and Others (SC Civil Application No. 2 of 2010)
• Attorney General v Shah (No. 4) [1971] EA 50
• Sesiriya Nakanwagi v Kyagwe Motors [1964] EA 41
• Beatrice Kobusingye v Fiona Nyakana and Another (SC Civil Appeal No. 5 of 2004)
• Uganda National Examinations Board v Mparo General Contractors Ltd (SC Civil Appeal No. 19 of 2004)
• Tegbe v Porobunu, (2024) 4 N.W.L.R> PART.1928 at 335
• Babcon Uganda Ltd v Mbale Resort Hotel Ltd (SC Civil Appeal No. 6 of 2016) [2017] UGSC 76
• Kasirye Byaruhanga & Co. Advocates v Uganda Development Bank (SC Civil Appeal No. 2 of 1997)
• Lawrence Musiitwa Kyazze v Eunice Busingye (SC Civil Application No. 18 of 1990)

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