Wakilii

Nakityo v Nakamya and Another (Miscellaneous Application No. 929 of 2022)

High Court · [2022] UGHCLD 174 · 2022 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal from High Court Land Division decision in Civil Appeal No. 26 of 2016 and Miscellaneous Application No. 2001 of 2018
Decision
Stay of execution granted conditionally pending determination of validation application before the Court of Appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court granted a conditional stay of execution of the judgment in Civil Appeal No. 26 of 2016 pending determination of the applicant's application for validation of the appeal before the Court of Appeal. The stay was granted on condition that the applicant deposit UGX 25,000,000 in court within twenty-one days. The court found that although the appeal was filed out of time, a validation application was pending before the Court of Appeal, and execution before determination of that application would render any successful appeal nugatory. The court rejected the stay application in respect of Miscellaneous Application No. 2001 of 2018, holding that the applicant required leave to appeal that order under Order 44 rule 2 of the Civil Procedure Rules.

Outcome

Stay of execution granted conditionally pending determination of validation application before the Court of Appeal

Facts

The applicant sought a stay of execution of the judgment in Civil Appeal No. 26 of 2016 delivered on 4 June 2018 and the ruling in Miscellaneous Application No. 2001 of 2018 delivered on 10 March 2022. The ruling in MA No. 2001 of 2018 was a clarification on the appellate decision in Civil Appeal No. 26 of 2016, declaring that a muzigo was part of the kibanja given to the deceased's wife. The applicant filed a notice of appeal on 18 May 2022, almost four years after the main judgment. The applicant also filed an application for validation of the appeal before the Court of Appeal. The respondent opposed the application, arguing that the applicant had no right of appeal, that there was unreasonable delay, and that there was no threat of execution. The applicant argued that execution was threatened in High Court Family Division Civil Suit No. 162 of 2020 based on the decrees in the Land Division cases, and that she would suffer irreparable loss through eviction from the suit property.

Issues

  1. Whether there is a pending appeal to justify a stay of execution.
  2. Whether substantial loss may result to the applicant if the stay of execution is denied.
  3. Whether the application was made without unreasonable delay.
  4. Whether the applicant furnished security for due performance of the decree or order.

Orders

  • Execution of the judgment and orders of this court vide Civil Appeal No. 26 of 2016 is stayed, pending the hearing and determination of the application before the Court of Appeal for validation of the appeal, or until further orders are issued by court.
  • The application for stay of execution is allowed on condition that the applicant deposits in court UGX 25,000,000 (twenty-five million shillings) within a period of twenty-one days from the date of this order.

Rules and key headnotes

Civil Procedure — Stay of Execution — Pending Appeal — Requirements
An applicant seeking a stay of execution pending appeal must demonstrate: (1) that a notice of appeal has been lodged; (2) that substantial loss may result unless the stay is granted; (3) that the application has been made without unreasonable delay; and (4) that the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.
Civil Procedure — Appeals — Notice of Appeal — Sufficiency
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 — Appeals — Leave to Appeal — Orders Requiring Leave
By virtue of Order 44 rule 2 of the Civil Procedure Rules, no appeal lies from any order except with leave of court, save for those orders listed in Order 44 rule 1 from which an appeal lies as of right. An applicant must seek prior leave of court before filing an appeal from an order not listed in Order 44 rule 1.
Civil Procedure — Stay of Execution — Substantial Loss — Property Capable of Permanent Alienation
Where the subject matter is property capable of permanent alienation and therefore capable of causing the appeal preferred to be nugatory, for example through transfer, the court will exercise its discretion in favour of the applicant so as to give benefit to the appeal to be attended to on its merits. However, if what is sought to be executed is payment of a sum of money, generally courts will deny stay because money can always be returned.
Civil Procedure — Stay of Execution — Unreasonable Delay — Application Pending Validation of Appeal
Where an appeal has been filed out of time and an application for validation of the appeal is pending before the Court of Appeal, a stay of execution may be granted in respect of the pending validation application rather than in respect of the appeal itself, notwithstanding the delay in filing the appeal.
Civil Procedure — Stay of Execution — Security for Costs — Mandatory Requirement
Order 43 rule 4(3)(c) of the Civil Procedure Rules makes it a mandatory requirement for an applicant seeking a stay of execution to furnish security for costs for due performance of the decree. The requirement for payment of security for costs is to ensure that a losing party does not intentionally delay execution while hiding under unnecessary applications and is intended to show seriousness by the intended appellant in pursuing the appeal.

Legislation cited (12)

Cases cited (8)

  • Singh v Runda Coffee Estates Ltd [1966] EA
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Application No. 18 of 1990)
  • Francis M. Micah v Nuwa Walakira (1992-93) HCB 88
  • Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 03 of 2014)
  • Attorney General of the Republic of Uganda v The East African Law Society and Another (EACA Application No. 1 of 2013)
  • P.K Sengendo v Busulwa Lawrence and Another (Court of Appeal Civil Application No. 207 of 2014)
  • Ujagar Singh v Runda Coffee Estates Ltd [1966] EA 263
  • Sewankambo Dickson v Ziwa Abby (High Court Miscellaneous Application No. 178 of 2005)

Full judgment

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

Nakityo_v_Nakamya_and_Another_(Miscellaneous_Application_No._929_of_2022)_[2022]_UGHCLD_174_(7_September_2022)
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.