Wakilii

Muhindo v Katumba & Another (Miscellaneous Cause 86 of 2023)

High Court · [2023] UGHC 461 · 2023 Application Granted 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 from High Court civil appeals
Decision
Stay of execution granted pending appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the applicant satisfied the requirements for stay of execution. The applicant demonstrated a prima facie case with grounds warranting the Court of Appeal's attention. Without a stay, the applicant faced irreparable damage through eviction and demolition of his family's residential structure, which would render the intended appeal nugatory. The balance of convenience favoured the applicant who stood to lose more without the stay. There was no inordinate delay in filing the application. Stay of execution granted pending determination of the appeal.

Outcome

Stay of execution granted pending appeal

Facts

The applicant was sued for trespass on land by the two respondents in Kasese Chief Magistrate Court Civil Suits 26 and 27 of 2016. Judgment was entered against the applicant ex parte with orders to vacate the suit land and pay damages and costs. The applicant unsuccessfully sought to set aside execution orders via Miscellaneous Applications 8 and 9 of 2017. The applicant then filed two appeals before the High Court at Fort Portal (Civil Appeals 40 and 41 of 2017), both of which were dismissed. The applicant filed a Notice of Appeal to the Court of Appeal and applied for stay of execution. The respondents were served with the Notice of Motion but filed no response and did not appear. A Notice to Show Cause why Execution should not Issue was served on the applicant on 30 April 2023. The applicant had constructed a residential home on the suit land and faced eviction and demolition of the structure housing his family if execution proceeded.

Issues

  1. Whether the applicant satisfied the conditions for a stay of execution of the decree pending determination of the intended appeal to the Court of Appeal.

Orders

  • Stay of execution of the decree in Fort Portal High Court Execution No. 31 of 2023 arising from Fort Portal High Court Civil Appeal No. 41 arising from Kasese Chief Magistrate Court Miscellaneous Application No. 9 of 2017 arising from Kasese Chief Magistrate Court Civil Suit No. 26 of 2016 granted pending determination of the applicant's intended appeal before the Court of Appeal.
  • Costs shall abide by the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution — Jurisdiction — Application Must be Made First in High Court
Where an application for stay of execution may be made either in the Court of Appeal or in the High Court, it must be made first in the High Court.
Civil Procedure — Stay of Execution — Principles — Four-Part Test
In determining applications for stay of execution, the court must consider: (1) whether the applicant's appeal has a likelihood of success or establishes a prima facie case of the right to appeal; (2) whether the applicant will suffer irreparable damage or the appeal will be rendered nugatory if stay is not granted; (3) if the first two have not been established, where the balance of convenience lies; and (4) whether the application was instituted without delay.
Civil Procedure — Stay of Execution — Irreparable Damage — Eviction and Demolition of Family Home
Where execution orders require eviction of an applicant and demolition of a residential structure housing the applicant's family, there is a real risk of irreparable damage and the intended appeal being rendered nugatory if stay of execution is not granted.
Civil Procedure — Stay of Execution — Intention to Appeal Per Se Not a Ground
An intention to appeal per se is not a ground for stay of execution and instituting an appeal does not operate as a stay of execution. A party seeking a stay must satisfy the court that there is sufficient cause why the party with judgment should postpone the enjoyment of its benefits.

Legislation cited (6)

Cases cited (4)

  • Moses Ingura v Law Development Centre (HCMA No. 133 of 2005)
  • Horizon Coaches Ltd v Pan African Insurance Ltd (SCCA No. 20 of 2002)
  • Wilson Mukiibi v James Semusambwa (SCCA No. 9 of 2003)
  • Theodore Sekikubo & Others v Attorney General and Another (Constitutional Application No. 6 of 2013)

Full judgment

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

Muhindo v Katumba & Another (Miscellaneous Cause 86 of 2023) [2023] UGHC 461 (18 December 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.