Wakilii

Mugisa and Another v Rev. G.W Rutabalengya and Another (Miscellaneous Application 102 of 2021)

High Court · [2023] UGHCCD 195 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to stay execution of High Court decree pending appeal to Court of Appeal
Decision
Application for stay of execution dismissed

Observed later treatment

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Holding

The court dismissed the application for stay of execution pending appeal, finding that the applicants had failed to institute their substantive appeal in the Court of Appeal despite the record being available since June 2022, over 60 days after filing the notice of appeal. The court concluded that the applicants' conduct demonstrated calculated foul play and that granting a stay would facilitate delaying tactics to frustrate the respondents. The applicants' failure to file within the prescribed time under Rule 83 of the Judicature (Court of Appeal) Rules meant they no longer had a pending appeal with a likelihood of success.

Outcome

Application for stay of execution dismissed

Facts

The applicants sought to stay execution of a High Court decree in Civil Appeal No. 19 of 2011 delivered on 27 October 2021 pending their intended appeal to the Court of Appeal. The decree included an order for vacant possession of land on which the applicants had lived all their lives and from which they derived food and income. The applicants filed a notice of appeal on 9 November 2021 and applied for the record of proceedings. The record was certified by the registrar on 6 June 2022, but the applicants never filed their memorandum of appeal in the Court of Appeal. The respondents opposed the application, arguing it was a delaying tactic as the applicants had not prosecuted their appeal despite having the record for several months and their time to appeal had expired without any application for extension.

Issues

  1. Whether the execution of the decree in High Court Civil Appeal No. 19 of 2011 should be stayed pending appeal to the Court of Appeal.
  2. Whether the applicants have shown sufficient cause for a stay of execution under Order 43 Rule 4(3) of the Civil Procedure Rules.
  3. Whether the applicants' failure to institute their appeal within the prescribed time affects their entitlement to a stay of execution.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Stay of Execution — Requirements for Grant — Pending Appeal
A stay of execution pending appeal is designed to preserve the subject matter in dispute so that the appeal, if successful, is not rendered nugatory, and the court will normally grant such a stay where an unsuccessful party is exercising their unrestricted right of appeal. However, the applicant must demonstrate that a substantive appeal exists or is being properly prosecuted.
Civil Procedure — Stay of Execution — Conditions for Grant — Order 43 Rule 4(3)
Before granting a stay of execution, the court must consider whether substantial loss may result to the applicant unless the order is made, whether the application has been made without unreasonable delay, whether security has been given for due performance of the decree, whether the appeal has a likelihood of success, and whether there is a serious or imminent threat of execution that would render the appeal nugatory.
Civil Procedure — Appeals — Time Limits — Effect of Failure to Institute Appeal
Under Rule 83 of the Judicature (Court of Appeal) Rules, an appeal must be instituted by lodging a memorandum of appeal within sixty days after the date when the notice of appeal was lodged. Rule 84 provides that a party who fails to institute an appeal within the prescribed time shall be taken to have withdrawn the notice of appeal, unless the court otherwise orders. Where the prescribed time has expired without filing the appeal or seeking an extension, the applicant no longer has a pending appeal with a likelihood of success for purposes of a stay application.

Legislation cited (9)

Cases cited (7)

  • Wilson v Church (1879) 12 Ch D 454
  • Global Capital Save 2004 Ltd and Another v Alice Okiror and Another (HCMA No. 485 of 2012)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Francis M Micah Vs Nuwa Walakira(1992-93) HCB88
  • Hon. Theodore Ssekikubo and Others v Attorney General and Another (Constitutional Application No. 6 of 2013)
  • Kyambogo University v Professor Isaiah Omolo Ndiege (Court of Appeal Civil Appeal No. 341 of 2013)
  • Rashida Abdul Karim and Another v Suleiman Adrisi (HCMA No. 9 of 2017)

Full judgment

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

Mugisa and Another v Rev. G.W Rutabalengya and Another (Miscellaneous Application 102 of 2021) [2023] UGHCCD 195 (28 February 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.