Mukhono v Kimono Kimaswa (Civil Appeal No. 93 of 2021)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

On an application for an interim stay of execution pending determination of the substantive stay application and a civil appeal, the Court of Appeal (single Justice) held that under Rule 6(2)(b) of the Court of Appeal Rules it had discretion to grant a stay, the paramount duty being to ensure a successful appeal is not rendered nugatory. The Court found that a serious threat of execution still existed against the applicant because the determination of the pending appeal would affect the consequential orders of the High Court. The interim stay was granted for three months, within which the parties were to fix the substantive application and appeal for hearing, with costs to abide the outcome.

Outcome

Interim stay of execution granted for three months pending fixing and determination of the substantive application and appeal

Facts

A consent Decree had been entered in High Court Civil Suit No.46 of 2010 concerning property at Plot 9, Pallisa Road, Mbale, under which the applicant took possession, constructed and used a building. In High Court Miscellaneous Application No.167 of 2020 the consent Decree was reviewed and set aside on grounds of illegality. The applicant lodged a Notice of Appeal on 22 December 2020 and a record of appeal, and filed Civil Appeal No.74 of 2021 together with a substantive application for stay of execution, Civil Application No.82 of 2021. The High Court at Mbale had ordered the applicant's eviction from the suit property and the respondent, the former registered proprietor, had transferred the property by sale. Pending determination of the substantive stay application and the appeal, the applicant sought an interim order of stay of execution, contending that consequential orders of eviction, vacation, caveat removal and costs remained to be executed.

Issues

1. Whether the applicant established a serious threat of execution justifying an interim order of stay of execution pending determination of the substantive application and appeal.

Orders

• The interim application for stay of execution of the Decree and Orders of the High Court in Miscellaneous Application No.167 of 2020 and Civil Suit No.46 of 2010 is allowed.
• The stay shall remain operative for three (3) months from the date of delivery of this Ruling.
• The Registrar and all parties are to take urgent steps to fix Civil Application No.82 of 2021 and/or Civil Appeal No.74 of 2021 for hearing and determination.
• Costs of the application shall abide the outcome of the substantive Civil Application No.82 of 2021 and/or Civil Appeal No.74 of 2021, whichever is determined first.

Rules and key headnotes

Legislation cited (6)

• Judicature Act Cap.13 s.10
• Judicature Act Cap.13 s.12
• Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 2
• Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 6(2)
• Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 44
• Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 76

Cases cited (7)

• Hwang Sung Industries v Tajdin Hussein (Civil Appeal No. 19 of 2008)
• Patrick Kaumba Wilshire v Ismael Dabule (Civil Appeal No. 3 of 2018)
• David Lubuuka v Fred Joel Nsobya (Miscellaneous Application No. 358 of 2016)
• Wilson Mukiibi v James Semusambwa (Civil Appeal No. 9 of 2003)
• Stanbic Bank (U) Ltd v Atabya Agencies Ltd (Civil Appeal No. 31 of 2004)
• Theodore Ssekikubo and Others v Attorney General and Another [2014] UGSC 14
• Exclusive Estate vs. Kenya Posts and Telecommunication Corporation and Another [2005]1 EA53

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