Wakilii

Nakiwala Safina & 2 Others (Admnistrators of the Estate of Late Ahmed Sembatya ) v Kawesa Sam & Anor (Miscellaneous Application 2721 of 2023)

High Court · [2023] UGHCLD 440 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal from High Court judgment in Civil Suit No. 105 of 2006
Decision
Stay of execution granted pending determination of Civil Appeal No. 279 of 2023

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted the application for stay of execution pending appeal. The court held that the applicants satisfied the conditions for stay: they had lodged a notice of appeal, would suffer substantial loss through destruction of crops and eviction from land in their possession, applied without unreasonable delay, and the appeal raised triable grounds with likelihood of success. Security for due performance of the decree was not required given the probability of success of the appeal.

Outcome

Stay of execution granted pending determination of Civil Appeal No. 279 of 2023

Facts

The late Nakitto Sarah, as administrator of the Estate of the late Erenesti Kawesa, filed Civil Suit No. 105 of 2006 against the applicants for trespass on land comprised in Kyadondo Block 215 Plot 939 at Kulambiro. Judgment was delivered on 7 June 2023 in favour of the late Nakitto Sarah, who passed away on 25 July 2023. The applicants, being dissatisfied with the decision, filed a notice of appeal on 8 June 2023 and a memorandum of appeal vide Civil Appeal No. 279 of 2023. The applicants were in possession of the suit land with crops from which they derived their sustenance. Agents of the late Nakitto Sarah threatened to evict the applicants and destroy the crops in execution of the decree. The respondents, surviving administrators of the estate of the late Erenesti Kawesa, did not object to the application and acknowledged that the suit land belonged to the late Alima Nakiwala, who was related to the applicants.

Issues

  1. Whether the execution of the decree in Civil Suit No. 105 of 2006 against the applicants should be stayed pending the determination of the applicants' appeal.

Orders

  • The execution of the decree from Civil Suit No. 105 of 2006 against the applicants be stayed pending the determination of the applicants' appeal Civil Appeal No. 279 of 2023.
  • The costs of the application will abide the outcome of the appeal in the Court of Appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions for Grant — Inherent Powers of High Court
The High Court has inherent powers under Section 98 of the Civil Procedure Act to stay execution of its own decrees pending appeal to the Court of Appeal, even in the absence of a specific statutory provision, where such stay is pertinent to the ends of justice.
Civil Procedure — Stay of Execution — Conditions for Grant — Kyazze Conditions
An applicant for stay of execution pending appeal must satisfy the following conditions: (i) that a notice of appeal has been lodged; (ii) that substantial loss may result unless the stay is granted; (iii) that the application has been made without unreasonable delay; (iv) that security for due performance of the decree has been given or is not required; (v) that there is serious or imminent threat of execution; (vi) that the appeal is not frivolous and has a likelihood of success; and (vii) that refusal to grant the stay would inflict more hardship than it would avoid.
Civil Procedure — Stay of Execution — Substantial Loss — Meaning and Application
The phrase 'substantial loss' does not represent any particular amount or size and cannot be qualified by any mathematical formula. It refers to any loss, great or small, of real worth or value as distinguished from loss that is merely nominal. Loss of possession of land and destruction of crops from which an applicant derives sustenance constitutes substantial loss.
Civil Procedure — Stay of Execution — Security for Due Performance — Discretion of Court
The requirement for security for due performance of the decree is not absolute. The decision whether to order payment of security must be made in consonance with the probability of success of the appeal. Where an appeal raises triable grounds with high chances of success, the court may dispense with the requirement for security.
Civil Procedure — Stay of Execution — Likelihood of Success — Test
An appeal has a likelihood of success where the court is satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried. An appeal that raises questions of law and fact not considered by the trial court and where the applicants are in possession of the contested property demonstrates likelihood of success.

Legislation cited (3)

Cases cited (7)

  • Singh v Runda Coffee Estates Limited (1966) EA
  • Lawrence Musitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Theodre Sekikubo and Others v The Attorney General and Others (Constitutional Application No. 03 of 2014)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal No. 341 of 2013)
  • Tropical Commodities Supplies Limited & 2 Others v International Credit Bank Limited (in liquidation) (2004) EA
  • John Baptista Kawanga v Namyalo Kevina & Anor (Miscellaneous Application No. 12 of 2017)
  • Gapco Uganda Limited v Kaweesa & Anor (Miscellaneous Application No. 259 of 2013) [UGHCLD 47]

Full judgment

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

Nakiwala_Safina_&_2_Others_(Admnistrators_of_the_Estate_of_Late_Ahmed_Sembatya_)_v_Kawesa_Sam_&_Anor_(Miscellaneous_Application_2721_of_2023)_[2023]_UGHCLD_440_(25_September_2023)
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.