Wakilii

Nalikka Mpima v Sensalire and Others (CIVIL MISC . APPL. NO 249 99)

High Court · [1999] UGHC 60 · 1999 Application Dismissed 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
Decision
Application for stay of execution and stay of taxation dismissed with costs to the respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for stay of execution dismissed. The court held that no execution proceedings had commenced and no taxation notices had issued, meaning there was nothing to stay. Further, the applicants failed to satisfy all three mandatory conditions under Order 39 rule 4(3) of the Civil Procedure Rules: they did not prove substantial loss, and they provided no security for due performance of the decree. The word 'and' in the rule is conjunctive — all conditions must be met.

Outcome

Application for stay of execution and stay of taxation dismissed with costs to the respondents

Facts

The applicants were plaintiffs in a civil suit which was dismissed on 15 January 1999 with costs to the respondents. The court ordered the 5th defendant/respondent to pay the applicants Shs 4,000,000 as compensation for commercial buildings on disputed land. The applicants filed a notice of appeal on 21 January 1999 and sought stay of execution of the judgment and stay of taxation proceedings pending the appeal. The applicants claimed they intended to renovate their father's commercial building of historical importance and that if demolished by the 5th respondent upon payment of the compensation sum, any appeal order would be nugatory. The 5th respondent swore an affidavit in reply stating he was the registered proprietor of the land, was willing to pay the compensation after taxation of costs in his favour, and intended to erect a modern commercial building, standing to suffer irreparable injury if stay were granted. At the hearing, counsel for the 1st and 3rd respondents raised preliminary objections that no execution had taken place, the application cited wrong law, and no security for costs had been provided.

Issues

  1. Whether the applicants satisfied the three conditions under Order 39 rule 4(3) of the Civil Procedure Rules for a stay of execution to be granted.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Stay of Execution — Premature Application — No Execution Proceedings Commenced
An application for stay of execution is premature and must fail where no execution proceedings have commenced and no bills of costs have been filed or taxation notices issued.
Stay of Execution — Stay of Taxation Proceedings — Interference with Court Process
Applications for stay of taxation proceedings amount to unwarranted interference with court process. The court has not finally determined a matter until costs have been taxed and certified. A party cannot purport to appeal while simultaneously blocking taxation of the bill of costs.
Stay of Execution — Conditions under Order 39 Rule 4(3) — Conjunctive Requirements
Under Order 39 rule 4(3) of the Civil Procedure Rules, all three conditions must be satisfied before a stay of execution can be granted: (a) substantial loss may result to the applicant unless the order is made; (b) the application has been made without unreasonable delay; and (c) security has been given by the applicant for due performance of the decree. The word 'and' is conjunctive, not disjunctive.
Stay of Execution — Substantial Loss — Proof Required
Substantial loss must be proved by admissible evidence in affidavit form. Counsel's submissions from the bar do not constitute evidence. Claims of historical importance or environmental value of a building must be supported by evidence such as expert reports from conservation bodies.
Stay of Execution — Security for Costs — Mandatory Requirement
Provision of security for due performance of the decree as may ultimately be binding upon the applicant is a mandatory requirement under Order 39 rule 4(3)(c). An application for stay of execution must fail where no security has been furnished.

Legislation cited (6)

  • Civil Procedure Act s.101
  • Civil Procedure Rules O.39 r.1
  • Civil Procedure Rules O.39 r.3
  • Civil Procedure Rules O.39 r.4
  • Civil Procedure Rules O.39 r.4(3)(c)
  • Court of Appeal Rules Directions 1996 Rule 5(2)(b)

Cases cited (2)

  • I.M. Kyazze v E. Busingye (Civil Appeal No. 18 of 1990)
  • Kampala Bottlers Ltd v Uganda Bottlers Ltd (Civil Appeal No. 25 of 1995)

Full judgment

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

Nalikka Mpima v Sensalire and Others (CIVIL MISC . APPL. NO 249_99) [1999] UGHC 60 (24 May 1999)
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.