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Mugisha Justus Baketunga v KCB Bank Uganda Ltd [2023] UGHC 540

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

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed an application for stay of execution pending appeal where the applicant failed to deposit security for due performance of the decree and failed to demonstrate substantial loss. The court held that all conditions under Order 43 Rule 4(3) of the Civil Procedure Rules must be fulfilled before execution can be stayed, including proof of substantial loss, absence of unreasonable delay, and provision of security. The applicant's failure to file an appeal nearly a year after filing the notice of appeal, combined with no evidence of security deposit, indicated an attempt to frustrate execution rather than a genuine appeal.

Outcome

Application for stay of execution dismissed

Facts

The Applicant filed HCCS No. 935 of 2016 against the Respondent. Judgment was entered for the Respondent with a bill of costs taxed at UGX 21,026,000. The Applicant filed a Notice of Appeal on 6 October 2022 against the judgment delivered on 23 August 2022 and the decree issued on 20 September 2022. The Respondent applied for execution of the decree on 13 December 2022. The Applicant was served with a Notice to show cause why execution should not issue on 19 January 2023. The Applicant then filed this application for stay of execution pending appeal on 19 March 2023. The Applicant claimed he would suffer substantial loss because he is a businessman unable to obtain loan facilities due to being listed by the Respondent with credit reference bureaus. The Applicant offered to furnish 20% of the taxed costs as security but provided no evidence of deposit. Nearly a year after filing the Notice of Appeal, no actual appeal had been filed.

Issues

  1. Whether this is a proper case for an order for stay of execution pending appeal to be issued.
  2. Whether the Applicant has lodged a Notice of Appeal.
  3. Whether substantial loss may result to the Applicant if the stay of execution is not granted.
  4. Whether the Application has been brought without unreasonable delay.
  5. Whether the applicant has given security for due performance of the decree or order.

Orders

  • Application dismissed.
  • Costs awarded to the Respondent.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant — Mandatory Requirements
All conditions laid down by Order 43 Rule 4(3) of the Civil Procedure Rules must be fulfilled before execution can be stayed, including that substantial loss may result to the applicant, that the application has been made without unreasonable delay, and that security has been given for due performance of the decree or order as may ultimately be binding upon the applicant.
Civil Procedure — Stay of Execution — Substantial Loss — Proof Required
Substantial loss for purposes of stay of execution need not be determined by a mathematical formula but must represent actual loss, whether great or small, as opposed to nominal damages, and the applicant must prove in his affidavit evidence that substantial or actual loss will result if the order for stay of execution is not granted.
Civil Procedure — Stay of Execution — Security for Costs — Purpose and Requirement
The payment of security for costs is intended to operate as a shield against the filing of frivolous and vexatious appeals which may never succeed yet have an effect in escalating trial costs, and to ensure that a losing party does not intentionally delay execution while hiding under unnecessary applications.
Civil Procedure — Stay of Execution — Security for Due Performance — Interpretation
Security for due performance 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, operating as an insurance cover meant to indemnify the judgment debtor in the event the appeal fails without recourse to vigorous processes of recovering such costs.
Civil Procedure — Stay of Execution — Failure to Deposit Security — Effect
Where an applicant offers to furnish security for costs but provides no evidence of such undertaking or deposit on the record, and where there is unexplainable delay in filing an appeal after filing a notice of appeal, the omission to furnish security confirms the applicant's attempts to delay execution of the decree and justifies dismissal of the application for stay.

Legislation cited (10)

Cases cited (8)

  • Jowangira Musitwa v Itobu Margret (HCMA No. 0160 of 2010)
  • Ntege Mayambala v Christopher Mwanje (HCMA No. 72 of 1991)
  • Hon Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 03 of 2014)
  • Kyambogo University v Prof. Isiah Omolo Ndiege (Court of Appeal Civil Appeal No. 341 of 2013)
  • Tropical Commodities Suppliers Ltd and 2 Others v International Credit Bank Ltd (In Liquidation) (Misc. Application No. 379 of 2003)
  • Shem Mpanga Mukasa and Another v Kizza Clessy Barya (Misc. Application No. 479 of 2021)
  • Kisaalu Joseph and 10 Others v Nakintu May and Another (Misc. Application No. 105 of 2020)
  • Wandera Micheal v Baguma Samalie (Misc. Application No. 36 of 2021)

Full judgment

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

Mugisha Justus Baketunga v KCB Bank Uganda Ltd 2023 UGHC 540 (15 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.