Wakilii

Mutebi & 3 Others v Mirembe & 2 Ors (Miscellaneous Application No. 2530 of 2016)

High Court · [2017] UGHCEBD 19 · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of a consent judgment pending appeal from dismissal of application for review
Decision
Stay of execution granted pending appeal, conditional on filing memorandum of appeal within two weeks

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted a stay of execution of a consent judgment pending appeal from the dismissal of an application for review. The court held that where applicants claim to be residents on disputed land, were not parties to the original suit, and filed a notice of appeal expressing intention to appeal, the balance of convenience favours granting a stay. A notice of appeal is sufficient to found the basis for stay orders in appropriate cases. The stay was granted on condition that applicants file their memorandum of appeal within two weeks.

Outcome

Stay of execution granted pending appeal, conditional on filing memorandum of appeal within two weeks

Facts

The First Respondent filed Civil Suit 301/2015 against the Second and Third Respondents for recovery of suit land. The parties entered into a consent judgment on 08.09.15. The Applicants, claiming to be residents on the disputed land but not parties to the suit, filed Miscellaneous Application 959/2015 for review of the consent judgment, which was dismissed. The Applicants filed a notice of appeal on 20.07.16 against the dismissal of the review application. The First Respondent then issued a notice to show cause why she should not be given vacant possession. The Applicants filed this application seeking stay of execution of the consent judgment pending hearing of their appeal.

Issues

  1. Whether the application for stay of execution should be allowed.

Orders

  • Application for stay of execution granted.
  • Stay of execution granted on condition that the Applicants file their memorandum of appeal within two weeks from the date of this ruling.
  • Costs of the application to abide the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution — Notice of Appeal as Basis for Stay
A notice of appeal is a sufficient expression of an intention to file an appeal and such action is sufficient to found the basis for grant of orders of stay in appropriate cases.
Civil Procedure — Stay of Execution — Balance of Convenience
Where applicants claim to be residents on disputed land, were never given a chance to be heard as they were not parties to the suit resulting in the consent judgment, and have filed a notice of appeal, the balance of convenience demands that an order of stay be granted to prevent rendering the appeal nugatory.
Civil Procedure — Stay of Execution — Security for Due Performance
Security for due performance of a decree is not appropriate where applicants contend they reside on the land and this was not disputed, particularly where they claim that no bill of costs was filed by the respondent and their loss would be eviction if they lose the appeal.
Civil Procedure — Stay of Execution — Guiding Principles
In applications for stay of execution, guiding principles depend on the individual circumstances and merit of each case, including likelihood of success of appeal, likelihood of suffering substantial loss or irreparable damage, whether application was made without unreasonable delay, whether security for costs has been given, and balance of convenience.

Legislation cited (5)

  • Civil Procedure Rules O.43 r.4
  • Civil Procedure Rules O.43 r.4(3)
  • Civil Procedure Rules O.52 r.1
  • Civil Procedure Rules O.52 r.3
  • Judicature Act s.33

Cases cited (5)

  • Nalwoga Gladys v Edco Ltd and Another (Miscellaneous Application No. 07 of 2013)
  • David Wesley v Attorney General (Constitutional Application No. 61 of 2014)
  • East African Development Bank v Blueline Enterprise Ltd [2006] 2 EA 5
  • Attorney General v East African Law Society and Another (EACJ Application No. 01 of 2013)
  • Equity Bank (U) Ltd v Were (High Court Miscellaneous Application No. 604 of 2013)

Full judgment

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

Mutebi & 3 Others v Mirembe & 2 Ors (Miscellaneous Application No. 2530 of 2016) [2017] UGHCEBD 19 (29 May 2017)
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.