Wakilii

Muhammad Musanje v Kigaba Bukenya Erismus (Miscellaneous Application 72 of 2025)

High Court · [2025] UGHC 378 · 2025 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of proceedings pending appeal to the Court of Appeal
Decision
Stay of proceedings granted pending appeal to the Court of Appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted a stay of proceedings in the counterclaim and related applications pending determination of the applicant's appeal to the Court of Appeal. The court held that the applicant established a prima facie case with likelihood of success, that the appeal would be rendered nugatory if the stay were not granted, and that the balance of convenience favoured the applicant as the registered proprietor of the disputed land.

Outcome

Stay of proceedings granted pending appeal to the Court of Appeal

Facts

The applicant, as administrator of the estate of late Abdalla Kamani Lugumya, filed Civil Suit No. 0271 of 2023 concerning land described as Bulemezi Block 490 Plot 3. On 13 and 15 September 2023, the applicant withdrew the suit. The respondent filed a Written Statement of Defence and Counterclaim on 18 September 2023 at 4:40 pm, after the withdrawal. The respondent subsequently filed Miscellaneous Application No. 0330 of 2023 seeking a temporary injunction. The Assistant Registrar overruled the applicant's preliminary objection that the counterclaim was invalid because it was filed after the suit had been withdrawn, and granted an interim injunction. The applicant appealed to the High Court (Misc Appeal No. 0009 of 2024), which was dismissed by Justice Henrietta Wolayo. The applicant then filed a Notice of Appeal to the Court of Appeal (COA-00-CV-0146-2025) and sought a stay of proceedings in the counterclaim and related applications pending determination of that appeal.

Issues

  1. Whether this application merits grant of an order of stay of proceedings in the counterclaim and attendant application until the determination of COA-00-CV-CA-0146-2025 pending at the Court of Appeal.
  2. What remedies are available.

Orders

  • The Counterclaim proceedings in HCT-17-LD-CS-0271-2023 are hereby stayed pending the determination of the Applicant's intended appeal.
  • The proceedings in HCT-17-MA-0265-2024 are hereby stayed pending the determination of the applicant's intended appeal.
  • The orders in HCT-17-LD-ML-0009-2024 are hereby stayed pending determination of the applicant's intended appeal.
  • Each party shall bear its own costs.

Rules and key headnotes

Civil Procedure — Stay of Proceedings — Principles for Grant of Stay Pending Appeal
For a court to grant a stay of proceedings pending appeal, the applicant must establish: (a) that the appeal has a likelihood of success or there is a prima facie case that merits consideration; (b) that the applicant will suffer irreparable damages or that the appeal will be rendered nugatory if a stay is not granted; and (c) if the court is in doubt, it must consider the case on a balance of convenience.
Civil Procedure — Stay of Proceedings — Prima Facie Case — Test
A prima facie case for purposes of a stay of proceedings requires the court to be satisfied that the claim is not frivolous or vexatious and that there are serious questions to be tried. The court is not bound to prove the grounds of appeal on the merits at this stage, as that role is for the appellate court.
Civil Procedure — Res Judicata — Stay of Proceedings — Effect of Lapse of Previous Stay Order
Where a court grants a stay of proceedings pending determination of an appeal, and that appeal is subsequently dismissed, the order of stay lapses. If the party then lodges a further appeal to a higher court, this gives the party a fresh right to apply for a stay of proceedings pending determination of the new appeal. The doctrine of res judicata does not apply because there was no finality in the decision; the previous stay order was only valid as long as the appeal subsisted.
Civil Procedure — Appeals — Competence of Appeal — Jurisdiction to Determine
Where a respondent challenges the competence of an appeal filed in the Court of Appeal on the ground that leave to appeal was required but not obtained, it is not within the mandate of the High Court to determine that issue. The question of competence of an appeal is within the mandate of the Court of Appeal itself. The Judicature (Court of Appeal Rules) Directions give the respondent an opportunity to apply to strike out the Notice of Appeal on grounds that the appeal is not competently before the Court.
Civil Procedure — Stay of Proceedings — Irreparable Damage — Appeal Rendered Nugatory
Where a party is exercising its unrestricted right of appeal and the appeal has a likelihood of success, it is the duty of the court to make such orders as will prevent the appeal, if successful, from being rendered nugatory. Continuing to hear and entertain proceedings in the lower court would render the appeal nugatory if the applicant emerged successful in the appellate court.
Civil Procedure — Stay of Proceedings — Balance of Convenience — Registered Proprietorship
In determining the balance of convenience for purposes of a stay of proceedings, where the applicant is the registered owner of the land in dispute and the respondent does not controvert this claim, it is fair that the applicant's appeal be heard before determination of the counterclaim. The balance of convenience leans in favour of the registered proprietor.

Legislation cited (10)

Cases cited (7)

  • Theodore Ssekikuubo & Ors v Attorney General & Ors (Constitutional Application No. 6 of 2013)
  • Rashidah Abdul Hanali v Suleimani Adrisi (HCMA No. 011 of 2017)
  • Godfrey Sekitoleko & 4 Ors v Seezi Peter Mutabazi & 2 Ors (Court of Appeal Civil Appeal No. 65 of 2011)
  • Timothy Alvin Kahoho v Secretary General of the East African Community (Application No. 5 of 2012)
  • Lydia Katahigwa v Eunice Atuhaire (Court of Appeal Civil Application No. 649 of 2022)
  • Shah Vs Attorney General
  • Uganda Revenue Authority v John Imaniraguha (HCMA No. 860 of 2023)

Full judgment

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

Muhammad Musanje v Kigaba Bukenya Erismus (Miscellaneous Application 72 of 2025) [2025] UGHC 378 (27 May 2025)
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.