Wakilii

Nakato v Kenroy Investments Limited (Civil Application No. 177 of 2014)

Court of Appeal · [2014] UGCA 108 · 2014 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for an interim order of stay of execution pending determination of a substantive stay application
Decision
Both the interim and substantive stay of execution applications dismissed as an abuse of court process

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court dismissed an application for an interim order of stay of execution. It held there was no valid basis for the interim stay because no application for leave to appeal against the High Court order (made under Order 36 Rule 5) had been granted by the Court of Appeal, and the order was not appealable as of right under section 76 of the Civil Procedure Act and Order 44. The applicant had admitted her indebtedness and had no valid defence, so the intended appeal had no likelihood of success. Any loss could be atoned in damages. Both the interim and substantive stay applications were found to be an abuse of court process and were dismissed under Rule 2(2).

Outcome

Both the interim and substantive stay of execution applications dismissed as an abuse of court process

Facts

The applicant sought an interim order of stay of execution pending the hearing of a substantive stay application (No. 176 of 2014) in the Court of Appeal. The order sought to be stayed was a High Court decision dated 23 April 2014 in Miscellaneous Application No. 132 of 2014, which dismissed the applicant's application for leave to appear and defend a suit brought under summary procedure (Order 36) in HCCS No. 69 of 2012. An order under Order 36 Rule 5 declining leave to defend is not appealable as of right; leave to appeal must first be sought. The applicant had sought and obtained leave at the High Court (Misc. App. 294 of 2014) on condition of depositing the decretal amount, but failed to comply. She had not sought leave of the Court of Appeal, and no such leave had been granted. The applicant admitted her indebtedness to the respondent.

Issues

  1. Whether the applicant established the conditions for grant of an interim order of stay of execution.
  2. Whether there was a valid pending appeal or application grounding the interim stay.
  3. Whether the applications constituted an abuse of court process.

Orders

  • Application No. 177 of 2014 dismissed with costs.
  • Main application No. 176 of 2014 dismissed under Section 12 of the Judicature Act and Rule 2(2) of the Rules of the Court.
  • No order as to costs in respect of application No. 176 of 2014.

Rules and key headnotes

Appeals — Leave to Appeal — Orders under Order 36 Rule 5 Civil Procedure Rules
An order made under Order 36 Rule 5 of the Civil Procedure Rules declining leave to appear and defend a summary suit is not appealable as of right under section 76 of the Civil Procedure Act or Order 44 Rule 1; leave to appeal must first be obtained.
Stay of Execution — Interim Orders — Requirement of a Valid Pending Appeal
For a court to grant an interim order of stay of execution there must be a pending application and a pending or intended appeal grounded on a valid notice of appeal; where no leave to appeal has been granted, there is nothing upon which the notice of appeal and stay application can be founded.
Stay of Execution — Likelihood of Success and Irreparable Loss
An intended appeal must not be frivolous or vexatious and must have a likelihood of success; where the applicant admits indebtedness and has no valid defence, and any loss from execution can be atoned by damages, the conditions for a stay of execution are not met.
Abuse of Court Process — Powers of the Court under Rule 2(2)
Applications brought merely to buy time and lacking any merit constitute an abuse of court process, which the court may prevent by making such orders as are necessary under Rule 2(2) of the Rules of the Court of Appeal.

Legislation cited (7)

Full judgment

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Nakato v Kenroy Investments Limited (Civil Application No. 177 of 2014) [2014] UGCA 108 (26 June 2014)
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.