Wakilii

Musiitwa Kyazze v Businghye (Civil Application No. 18 of 1999)

Supreme Court · [1990] UGSC 29 · 1990 Jurisdiction Assumed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application on notice to the Supreme Court for a stay of execution pending the determination of an appeal from a High Court judgment.
Decision
The Supreme Court held that it had jurisdiction under rule 5(2)(b) of the Court of Appeal Rules, treated the application made to the High Court as having been substantially made and refused, and determined that it should deal with the stay application under its own jurisdiction. The precise final order on the stay could not be recovered from the OCR text.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On an application for a stay of execution pending appeal, the Supreme Court held that it possesses jurisdiction under rule 5(2)(b) of the Court of Appeal Rules to grant a stay, and that rule 41 does not impose a mandatory limitation requiring a prior application to the High Court in civil matters. The general practice is that a stay should first be sought informally from the judge who decided the case; but where the High Court refuses to accept jurisdiction, declines it on manifestly wrong reasons, or where there is great delay, the appellate court may itself intervene and accept jurisdiction in the interests of justice. The Court resolved the ambiguity in favour of its express powers.

Outcome

The Supreme Court held that it had jurisdiction under rule 5(2)(b) of the Court of Appeal Rules, treated the application made to the High Court as having been substantially made and refused, and determined that it should deal with the stay application under its own jurisdiction. The precise final order on the stay could not be recovered from the OCR text.

Facts

Lawrence Musiitwa Kyazze and Eunice Businghye had litigated a civil suit in the High Court of Uganda (Civil Suit No. 898). Kyazze lost and was ordered to vacate the suit premises within a fixed period from the date of judgment. He decided to appeal and brought the present application on notice to the Supreme Court seeking a stay of execution pending the determination of the appeal. A question arose as to whether the application had first been properly made to, and refused by, the High Court, and whether the High Court had refused a stay on erroneous grounds. This raised the central question of the Supreme Court's jurisdiction, and the relationship between rule 5(2)(b) and rule 41 of the Court of Appeal Rules and the inherent jurisdiction to grant a stay.

Issues

  1. Whether, where an application of some sort has been made to the High Court and refused on any ground, the Supreme Court may entertain its own jurisdiction to grant a stay of execution.
  2. Whether, where no application of any sort has been made to the High Court, the Supreme Court must forego its own jurisdiction and await the High Court's decision first.

Rules and key headnotes

Civil Procedure — Stay of Execution — Jurisdiction of the appellate court under rule 5(2)(b)
The Supreme Court has jurisdiction under rule 5(2)(b) of the Court of Appeal Rules to grant a stay of execution pending appeal, and rule 41 does not impose a mandatory limitation requiring that an application first be made to the High Court in civil matters.
Civil Procedure — Stay of Execution — Practice and procedure for applying for a stay
As a general practice an application for a stay of execution should be made informally, in the first instance, to the judge who decided the case at the time judgment is delivered, who may grant a temporary stay and direct that a formal motion on notice be presented.
Civil Procedure — Stay of Execution — Appellate intervention where the High Court declines jurisdiction
Where the High Court refuses to accept jurisdiction, declines jurisdiction on manifestly wrong reasons, or where there is great delay, the appellate court may intervene and accept jurisdiction over a stay application in the interests of justice.
Civil Procedure — Stay of Execution — Preservation of the status quo and the nugatory-appeal principle
The appellate court's interest is to preserve the status quo so that a successful appeal is not rendered nugatory, and this consideration underlies the power to stay execution pending appeal.
Statutory Interpretation — Resolving ambiguity in favour of an express statutory power
An ambiguity in the rules is to be resolved in favour of the express power conferred on the Supreme Court, without reading in a mandatory limitation on that power.

Legislation cited (17)

Cases cited (5)

  • Cropper v Smith (1883) Ch D
  • Wilson v Church (No 2) (1879) 12 Ch D 454
  • Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 448
  • MUKWANO ... ADVOCATES Vs NATIONAL INSURANCE CORP (Civil Appeal No. 13 of 1984, decided 29th May 1985)
  • ... Vs RUNDH COFFEE ESTATES LTD [1963] 26

Full judgment

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

Musiitwa Kyazze v Businghye (Civil Application No. 18 of 1999) [1990] UGSC 29 (12 February 1990)
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.