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Mugisha v KCB Bank Uganda Limited (Miscellaneous Application 173 of 2023)

High Court · [2023] UGCOMMC 254 · 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 with costs to the Respondent

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, holding that the Applicant failed to fulfil the mandatory conditions under Order 43 Rule 4(3) of the Civil Procedure Rules. While the Applicant lodged a Notice of Appeal and filed the application without unreasonable delay, he failed to prove substantial loss and provided no security for due performance of the decree. The Court found that the Applicant's failure to file an appeal for almost a year after filing the Notice of Appeal and his failure to deposit any security indicated an attempt to delay execution of the decree.

Outcome

Application for stay of execution dismissed with costs to the Respondent

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. On 6 October 2022, the Applicant filed a Notice of Appeal against the judgment delivered on 23 August 2022 and the decree issued on 20 September 2022. On 13 December 2022, the Respondent applied for execution of the decree. On 19 January 2023, the Applicant was served with a notice to show cause why execution should not issue. On 19 March 2023, the Applicant filed this application for stay of execution pending appeal to the Court of Appeal. The Applicant claimed he would suffer substantial loss because he is a businessman currently unable to obtain loan facilities from any bank as a result of the Respondent's credit bureau report. The Respondent opposed the application, arguing that the Applicant had filed a Notice of Appeal in 2022 but had not obtained the record of proceedings or filed an actual appeal, had not furnished security for due performance, and had not proved substantial loss.

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 — Mandatory Conditions — Order 43 Rule 4(3) CPR
For a court to grant a stay of execution pending appeal, the applicant must satisfy all three mandatory conditions under Order 43 Rule 4(3) of the Civil Procedure Rules: (a) that substantial loss may result to the party applying unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given for the due performance of the decree or order as may ultimately be binding upon the applicant.
Civil Procedure — Stay of Execution — Substantial Loss — Burden of Proof
An applicant seeking stay of execution must prove by affidavit evidence that substantial or actual loss will result if the order for stay is not granted. Substantial loss need not be determined by a mathematical formula but must represent actual loss, whether great or small, as opposed to nominal or unproven loss. Mere assertion of potential business difficulty or credit facility denial without supporting evidence is insufficient.
Civil Procedure — Stay of Execution — Security for Due Performance — Rationale
The requirement that an applicant deposit security for due performance of the decree operates as a shield against the filing of frivolous and vexatious appeals and ensures that a losing party does not intentionally delay execution while hiding under unnecessary applications. Security for due performance serves as an insurance cover meant to indemnify the judgment creditor in the event the appeal fails.
Civil Procedure — Stay of Execution — Failure to File Appeal — Ploy to Delay Execution
Where an applicant files a Notice of Appeal but fails to file an actual appeal for almost a year and provides no evidence of having deposited security for costs, the Court may infer that such actions constitute a ploy to frustrate the respondent from realising their costs and to delay execution of the decree.

Legislation cited (10)

Cases cited (8)

  • Lairence Musiifwa v Itobu Margret (HCMA No. 0160 of 2021)
  • Ntege Mayambala v Christopher Mwanje (HCMA No. 72 of 1991)
  • Hon Theodore Ssekikuubo 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) (Miscellaneous Application No. 379 of 2003)
  • Shem Mpanga Mukasa and Another v Kizza Clessy Barya (Miscellaneous Application No. 479 of 2021)
  • Kisaalu Joseph and 10 Others v Nakintu May and Another (Miscellaneous Application No. 105 of 2020)
  • Wandera Micheal v Baguma Samalie (Miscellaneous 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 v KCB Bank Uganda Limited (Miscellaneous Application 173 of 2023) [2023] UGCommC 254 (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.