Wakilii

Musherure v Bamuhiga (HCT-05-CV-MA-0150-2004)

High Court · [2005] UGHC 116 · 2005 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of Chief Magistrate's Court decree pending appeal to High Court
Decision
Application for stay of execution dismissed; execution may proceed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that although the application could have been brought under Order 39 rule 4 CPR, Order 19 rule 26 CPR was sufficiently general to embrace the application. The applicant failed to demonstrate substantial loss beyond being sent off land registered in the respondent's name, and failed to show good cause for stay of execution. Application dismissed with costs to the respondent.

Outcome

Application for stay of execution dismissed; execution may proceed

Facts

The applicant sought to stay execution of a Chief Magistrate's Court decree in Kabale Civil Suit 52 of 1997 pending determination of his appeal (Civil Appeal No. 029 of 2004). The respondent had obtained a warrant of vacant possession over suit land registered in the respondent's name. The applicant deposed that he and his family derived a livelihood from the land and would suffer substantial loss if execution proceeded. He claimed the appeal had high prospects of success. The respondent opposed, arguing the application was brought under wrong provisions, and that the applicant had not demonstrated substantial loss given the land was registered in the respondent's name.

Issues

  1. Whether the court had jurisdiction to entertain an application for stay of execution under Order 19 rule 26 CPR rather than Order 39 rule 4 CPR.
  2. Whether the applicant had shown good cause for a stay of execution pending appeal.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Stay of Execution — Jurisdiction of High Court — Application Brought Under Order 19 Rule 26 CPR
An application for stay of execution may be brought under Order 19 rule 26 CPR, which is sufficiently general in wording to embrace such applications, although Order 39 rule 4 CPR provides a more specific remedy where an appeal is pending.
Civil Procedure — Stay of Execution — Court to Which Application Should Be Made — High Court Jurisdiction After Appeal Lodged
An application for stay of execution should at the earliest opportunity be made to the court that passed the decree, provided it is made before the time allowed for appeal expires. The High Court may grant the application after an appeal is lodged and good cause is shown under Order 39 rules 4(4) and (5) CPR, and the High Court also has power to order a stay of execution under its inherent jurisdiction where an appeal is pending.
Civil Procedure — Inherent Jurisdiction — Invocation Under Section 98 Civil Procedure Act — Availability of Specific Remedy
Where there is a remedy provided under the law or rules to meet the necessities of the case, a party cannot ask the court to invoke its inherent jurisdiction under section 98 of the Civil Procedure Act.
Civil Procedure — Stay of Execution — Proof of Substantial Loss — Land Registered in Decree Holder's Name
Where the subject matter of execution is land registered in the decree holder's name, an applicant seeking stay of execution must demonstrate substantial loss beyond the mere fact of being evicted. The ability to reclaim the land should the appeal succeed negates the existence of irreparable harm justifying a stay.

Legislation cited (4)

Cases cited (5)

  • Iddi Halfani v Hamidsa Binti Athumani [1962] EA 761
  • Saudi & Another v All Mukunyu [1987] HCB 51
  • Ujagar Singh v Runda Coffee Estates Ltd [1966] EA 263
  • Nganga v Kimani [1969] EA 67
  • Publishing & Advertising Services v Uganda Litho [1981] HCB 65

Full judgment

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

Musherure v Bamuhiga (HCT-05-CV-MA-0150-2004) [2005] UGHC 116 (3 February 2005)
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.