Wakilii

Mulembe v Korutaro & Ors (HCT – 01 – LD – MA – 0019 of 2016-11-08)

High Court · [2016] UGHCLD 29 · 2016 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal from Chief Magistrate's Court land suit judgment
Decision
Stay of execution granted pending appeal despite procedural defects

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that while the application was brought under the wrong provision of law (Order 22 Rule 26 instead of Order 43 Rule 4) and the supporting affidavit was incurably defective due to non-compliance with the mandatory requirements of the Oaths Act regarding place of swearing, the stay of execution should nevertheless be granted in the interest of justice to maintain the status quo pending the appeal, applying Article 126(e) of the Constitution which requires substantive justice without undue regard to technicalities.

Outcome

Stay of execution granted pending appeal despite procedural defects

Facts

The applicant appealed against a Chief Magistrate's Court judgment in a land suit. While the appeal was pending, the respondents sought to re-enter and apportion the suit land among themselves. The applicant filed an application seeking to stay execution of the lower court's judgment and decree pending determination of the appeal, arguing that the respondents' conduct would render the appeal nugatory. The application was supported by an affidavit sworn by Muhairwe Seezi. The respondents opposed the application on grounds that it was brought under the wrong provision of law (Order 22 Rule 26 instead of Order 43 Rule 4) and that the supporting affidavit was defective because it was sworn in Kampala but commissioned before a Magistrate in Fort Portal, contrary to Section 6 of the Oaths Act which requires the place and date of swearing to be stated in the jurat.

Issues

  1. Whether the application was properly brought under Order 22 Rule 26 or should have been brought under Order 43 Rule 4 of the Civil Procedure Rules.
  2. Whether the affidavit in support was incurably defective for being sworn in Kampala but commissioned in Fort Portal.
  3. Whether execution of the judgment should be stayed pending appeal.

Orders

  • Execution stayed pending the hearing of the appeal.
  • Costs in the cause.

Rules and key headnotes

Stay of Execution — Proper Provision for Application Pending Appeal — Order 22 Rule 26 versus Order 43 Rule 4
An appeal pending in a higher court against an earlier decision is not a suit in that court and an application for stay of execution based on a pending appeal must be brought under Order 43 Rule 4 of the Civil Procedure Rules, not Order 22 Rule 26 which applies only where a suit is pending against the decree holder.
Affidavits — Mandatory Requirements — Place and Date of Swearing — Defective Affidavits
The place and date where an oath or affidavit is taken must be stated in the jurat as required by Sections 5 and 6 of the Oaths Act, and this requirement is mandatory. An affidavit sworn in one place but commissioned in another without proper indication in the jurat is incurably defective.
Stay of Execution — Inherent Powers of Court — Substantive Justice versus Technicalities
Where an application for stay of execution is brought under the wrong provision and is supported by a defective affidavit, the court may nevertheless grant the stay in the interest of justice to maintain the status quo pending appeal, exercising its inherent powers under Section 98 of the Civil Procedure Act and applying Article 126(e) of the Constitution which requires substantive justice without undue regard to technicalities.

Legislation cited (6)

Cases cited (9)

  • Mugenyi & Co. Advocates v National Insurance Corporation [1992-1993] HCB 82
  • Joseph Owoko v Edward Mugalu [1970] HCB 332
  • National Housing and Construction Corporation v Kampala District Land Board and Another (Civil Appeal No. 6 of 2002)
  • M.B Nandala v Father Lyding [1963] EA 710
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Richard Mwirumubi v Jada Limited (HCCA No. 978 of 1996)
  • Coffee Marketing Board Ltd v Bukyenkye Coffee Factory (U) Ltd [1996] HCB 59
  • Kasaala Growers Co-operative Society v Kakooza and Another (SCCA No. 19 of 2010)
  • Idah Iterura v Joyce Muguta (SCCA No. 2 of 2006)

Full judgment

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

Mulembe v Korutaro & Ors (HCT – 01 – LD – MA – 0019 of 2016-11-08) [2016] UGHCLD 29 (14 November 2016)
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.