Wakilii

Mwa v Komakech (Miscellaneous Application No. 149 of 2019)

High Court · [2020] UGHC 158 · 2020 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of decree pending appeal to Court of Appeal
Decision
Stay of execution granted on condition that the applicant deposits security for costs within fourteen days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

In an application for stay of execution pending appeal, the applicant must show that a notice of appeal was filed; that substantial loss may result unless the stay is granted; that the application was made without unreasonable delay; and that security has been given for due performance of the decree. The court found that the applicant had filed his appeal years earlier, faced imminent execution, filed without undue delay, and raised arguable grounds regarding the first appellate court's failure to re-evaluate evidence, which constitutes an error of law. Stay of execution was granted on condition that the applicant deposit UGX 500,000 as security for costs.

Outcome

Stay of execution granted on condition that the applicant deposits security for costs within fourteen days

Facts

The respondent obtained judgment in the Chief Magistrate's Court of Kitgum in 2010, declaring him rightful owner of land at Gulu Hill and ordering the applicant to vacate and pay UGX 1,000,000 as mesne profits. Both parties had purchased the same land from different sellers. The applicant's first appeal to the High Court was dismissed on 4 August 2014. The applicant filed a second appeal to the Court of Appeal on 3 February 2015, which was yet to be fixed for hearing. On 5 July 2019, the applicant was served with a notice to show cause why the decree should not be executed. The applicant sought a stay of execution pending the Court of Appeal hearing, arguing that he would suffer irreparable damage if evicted before the appeal was heard and that the appeal had a likelihood of success.

Issues

  1. Whether the applicant satisfied the conditions for a stay of execution pending appeal to the Court of Appeal.

Orders

  • Execution of the decree of the court below is hereby stayed.
  • The applicant shall deposit in court a sum of UGX 500,000 as security for costs within fourteen days of this order.

Rules and key headnotes

Civil Procedure — Stay of Execution — Requirements for Stay Pending Appeal
In an application for stay of execution pending appeal, the applicant must show that he or she lodged a notice of appeal; that substantial loss may result to the applicant unless the stay of execution is granted; that the application has been made without unreasonable delay; and that the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.
Civil Procedure — Stay of Execution — Meaning of Substantial Loss
Substantial loss does not represent any particular size or amount but refers to any loss, great or small, that is of real worth or value as distinguished from a loss that is merely nominal.
Civil Procedure — Appeals — Failure of First Appellate Court to Re-evaluate Evidence
Failure by a first appellate court to evaluate the material evidence as a whole constitutes an error in law, and an appeal raising such grounds is not frivolous and has a likelihood of success.
Civil Procedure — Stay of Execution — Security for Costs Rather than Decretal Amount
Courts have been reluctant to order security for due performance of the entire decretal amount, preferring instead to order security for costs, because the requirement and insistence on a practice that mandates security for the entire decretal amount is likely to stifle appeals.

Legislation cited (2)

Cases cited (7)

  • Lawrence Musiitwa Kyazze v Eunice Businge (Supreme Court Civil Application No. 18 of 1990)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Miscellaneous Civil Application No. 341 of 2013)
  • Tropical Commodities Supplies Ltd and Others v International Credit Bank Ltd (in Liquidation) [2004] 2 EA 331
  • Muluta Joseph v Silvano Katama (Supreme Court Civil Appeal No. 11 of 1999)
  • Bogere Moses and Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Akbar Hussein Godi v Uganda (Supreme Court Criminal Appeal No. 3 of 2013)
  • DFCU Bank Ltd v Dr. Ann Persis Nakate Lussejere (Court of Appeal Civil Appeal No. 29 of 2003)

Full judgment

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

Mwa v Komakech (Miscellaneous Application No. 149 of 2019) [2020] UGHC 158 (8 June 2020)
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.