Wakilii

Nakakande v Kimera & Another (Miscellaneous Application 321 of 2023)

High Court · [2024] UGHCFD 7 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of decree pending appeal to the Court of Appeal, arising from Civil Suit No. 62 of 2020
Decision
Application dismissed; execution to proceed; non-compliance declared contempt of court

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application for stay of execution, holding that the applicant failed to establish substantial loss, unreasonable delay, or imminent threat of execution. The court found that execution had already commenced with the transfer of the certificate of title and electricity supply applications by the 2nd respondent. The applicant had not demonstrated loss beyond that suffered by any unsuccessful litigant, and the balance of hardship favored the successful judgment creditor who was entitled to the fruits of his judgment.

Outcome

Application dismissed; execution to proceed; non-compliance declared contempt of court

Facts

The applicant/plaintiff brought an application to stay execution of a decree entered against her in Civil Suit No. 63 of 2020 pending her appeal to the Court of Appeal. Judgment in the main suit had been delivered on 18 July 2023. The applicant filed a notice of appeal on 27 July 2023 and requested certified copies of the judgment and proceedings. The decree concerned administration of an estate and a Memorandum of Understanding whereby the 2nd respondent was to acquire suit property at Kyadondo Block 270 Plot 972 at Kiwatule with rental units. By the time the stay application was filed on 26 October 2023, the 2nd respondent had already transferred the certificate of title into his name (Instrument No. KCCA-0010889) and applied to UMEME to change electricity lines into his name on 22 September 2023. The applicant continued to reside on the property and collect rental income. The 2nd respondent had offered compensation for developments on the land, but the applicant refused to collect the money or provide bank details for deposit.

Issues

  1. Whether execution of the decree in Civil Suit No. 63 of 2020 should be stayed pending the hearing and determination of the civil appeal in the Court of Appeal

Orders

  • Application for stay of execution of the decree in Civil Suit No. 63 of 2020 denied.
  • Execution of the decree in Civil Suit No. 63 of 2020 to proceed.
  • Failure to comply with the decree and orders in Civil Suit No. 63 of 2020 shall amount to contempt of court.
  • Costs awarded to the 1st and 2nd Respondents.

Rules and key headnotes

Stay of Execution — Conditions for Grant — Substantial Loss
An applicant seeking stay of execution must prove substantial loss beyond that suffered by any ordinary unsuccessful litigant. Substantial loss refers to loss of real worth or value, not merely the loss necessarily occasioned by an adverse judgment, and must be of a nature that cannot be undone once inflicted.
Stay of Execution — Execution Already Commenced — Application to Stop Rather than Stay
Where execution has already commenced through concrete steps such as transfer of title and change of utility accounts, an application nominally for stay of execution becomes in substance an application to stop execution. A vigilant litigant intending to appeal should file for stay immediately upon filing the notice of appeal, as a successful judgment creditor cannot reasonably be expected to delay enforcement.
Stay of Execution — Balance of Hardship — Successful Judgment Creditor's Right to Fruits of Judgment
In determining whether to grant a stay of execution, the court balances the interest of the applicant in preserving the appeal against the interest of the successful party in enjoying the fruits of judgment. Where the applicant continues to collect rent from property decreed to the respondent and refuses offered compensation, the balance of hardship favors the respondent who has been frustrated in obtaining the fruits of judgment.
Stay of Execution — Five Cumulative Conditions under Order 43 Rule 4(3)
Under Order 43 Rule 4(3) of the Civil Procedure Rules, a court considering an application for stay of execution must examine five cumulative conditions: (i) substantial loss would result unless the order is made; (ii) the application has been made without unreasonable delay; (iii) security for due performance has been given; (iv) there is serious or imminent threat of execution; and (v) refusal would inflict more hardship than it would avoid. Failure to satisfy any condition is fatal to the application.

Legislation cited (3)

Cases cited (9)

  • Wilson v Church (1879) 12 Ch D 454
  • Global Capital Save 2004 Ltd & Another v Alice Okiror & Another (HCMA No. 485 of 2012)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (SCCA No. 18 of 1990)
  • Kyambogo University v Professor Isaiah Omolo Ndiege (CA No. 341 of 2013)
  • Walusimbi Mustafa v Musenze Lukera (HCMA No. 232 of 2018)
  • Shell Ltd v Kiburu & Another (1986) 1 KLR 410
  • Formula Feeds Limited & Others v KCB Bank Limited (HCMA No. 1647 of 2022)
  • Alice Wambui Nganga v. John Ngure Kahoro and another, ELC Case No. 482 of 2017 (at Thika); [2021] eKLR
  • John Baptist Kawaga v Namyalo Kevina & Another (Miscellaneous Application No. 12 of 2017)

Full judgment

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

Nakakande v Kimera & Another (Miscellaneous Application 321 of 2023) [2024] UGHCFD 7 (11 March 2024)
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.